When repairs are not enough
Landlords have long since had an obligation to carry out repairs to properties let under a short lease/tenancy[i].
S11(1) of the Landlord and Tenant Act 1985 (“the 1985 Act”) requires landlords:
- to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),
- to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and
- to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.
However, note the limitations of the obligation to “keep in repair”. This meant that (however poor the condition of a property might be) a landlord would not be liable without there being evidence of deterioration since the start of the tenancy. For example, if a landlord let a property with no heating system, S11 would not require him/her to have one installed.
Technically, S8 of the 1985 Act did impose an obligation to ensure that their properties were fit for human habitation. However, given that (for historic reasons) this section applied only to properties with rents of up to £80 per annum in London (!) and £52 per annum elsewhere(!!), it was clearly useless in practice.
The Housing Act 2004 introduced the Housing, Health and Safety Rating System (HHSRS) which gave local authorities the power to demand improvements (e.g. compelling a landlord to install heating, continuing the above example). Later retaliatory eviction provisions (introduced by the Deregulation Act 2015) also prevented a landlord from using the S21 “no fault” possession procedure where a local authority had served relevant notices and the works had not been done. However, tenants living in sub-standard accommodation, unable to prove deterioration, still had no direct means of holding their landlord to account.
In 2017, the Grenfell Tower tragedy threw this loophole into sharp focus. Homes constructed using potentially flammable cladding posed a significant risk, but tenants could not directly compel their landlords to replace it using existing legislation.
The Homes (Fitness for Human Habitation) Act 2018 (“the 2018 Act”)
The 2018 Act now requires all landlords to ensure that their properties are fit for human habitation, both at the beginning of the tenancy and for its whole duration.
All new tenancies have had such a term implied into them since 20th March 2019 and all existing tenancies have included this provision since 20th March 2020.
There is now no need for a tenant to prove deterioration to seek compensation and/or an order that improvements be made. A tenant may bring a breach of contract claim against the landlord wherever a property is not reasonably suitable for accommodation. This could be due to any of the following:
- Lack of repair
- Lack of stability
- The internal arrangement
- Absence of internal lighting
- Ventilation problems
- Water supply problems
- Drainage or sanitary problems
- Lack of facilities for preparation and cooking of food
- Problems with waste water disposal
- Any hazard defined by the Housing Act 2004
What does this mean for landlords?
For conscientious landlords, whose properties are well constructed, equipped and maintained, the 2018 Act may not mean significant changes or costs. However, government figures[ii] from 2017/18 indicated that 14% of privately rented homes had at least one category one hazard[iii] whilst the figure was 6% (as many as 234,000 homes) in the social housing sector.
Whilst most landlords take their responsibilities very seriously, many have immediate work to do to avoid the risk of claims. The risk is clearly multiplied for social landlords and those holding a large portfolio of residential properties. Some landlords may need to take urgent steps sell properties if they are unable to afford the works required.
All landlords should ensure that they carefully monitor the condition of their properties, making plans (and adequate financial provision) for works and/or maintenance likely to be required in the future.
Landlords that currently have agreements with agents to fulfill their repairing obligations should bear in mind that the 2018 Act introduces improvement duties, which may not be covered by those agreements.
Similarly, where tenancy agreements include service charges to cover repairs, these will not usually include improvements. Even where works are covered by service charges, significant expenditure will require consultation with tenants and landlords may wish to seek legal advice to comply with such provisions and ensure recovery where possible.
What if a landlord is not aware of a problem?
As was the case before the 2018 Act, a landlord will not be liable for problems within the let property (including private gardens etc.) unless the tenant has given them notice of it. That said, it is still strongly advisable for landlords to maintain a regular inspection routine. Not only does this give landlords confidence that a property is being used appropriately by tenants but would also provide an opportunity for landlords to detect any potential problems at an early stage – both by observation and by communicating effectively with tenants. Detailed notes should be kept of these inspections and of any difficulties reported by tenants.
Notice is not required of problems upon land retained by the landlord, such as stairs or entrance halls etc.[iv] unless the tenancy specifically states otherwise. Landlords must therefore ensure that they have robust inspection procedures in place to review the condition of such areas.
Where, for example, a landlord owns just one flat in a block (and only has a right of access over communal paths etc.) the landlord’s liability will depend on notice having been given[v]. However, landlords will nevertheless be well advised to keep on eye on communal areas so that the head landlord can be informed of any difficulties at the earliest opportunity.
Is there scope for the 2018 Act to be abused?
Most commentators agree that the 2018 Act is a necessary step towards improving living conditions for the most vulnerable in society. Unfortunately, any legislation which provides for the payment of compensation is vulnerable to abuse by unscrupulous claimants and/or lawyers. Courts will of course wish to see expert reports to evidence allegations of unfitness. However, the legal costs to a landlord of fighting a claim may exceed the sum for which a dishonest tenant may settle, leading some claimants to “chance their arm” and threaten weak claims in the hope that an early settlement will be offered to dispose of the matter.
Further, there is anecdotal evidence that some “factory firms”, previously engaged in personal injury work, will see unfitness claims as a lucrative source of revenue following changes to funding rules for personal injury work. Housing Associations and local authorities are particularly likely to be targeted by such firms, given their ability to settle and need to minimise costs.
If threatened with claims under the 2018 Act, landlords should take such threats seriously and consider taking legal advice from the outset. Dubious claims should naturally be resisted, but where there are defects to a property early offers to remedy the problem may be the best way to minimise the cost of a claim.
Social landlords should ensure that they have robust procedures in place to manage any claims and to assess them in line with existing policies and their obligations under the Equality Act 2010.
Perrin Myddelton have experience in dealing with a wide variety of property disputes, including claims under the Homes (Fitness for Human Habitation) Act 2018. Should you have any queries regarding a property dispute please call Kathryn Dale on 01582 466152 or email firstname.lastname@example.org
[i] So called “short leases” are those let for a term of less than 7 years, which would include periodic tenancies and most assured and assured shorthold tenancies (subject to limited exceptions). Certain assured and secure tenancies let for more than 7 years are also covered.
[ii] Ministry of Housing, Communities and Local Government – English Housing Survey Social Rented Sector Report, 2017-18 (page 38)
[iii] The most serious category of hazards, as defined by the Housing, Health and Safety Rating System.
[iv] British Telecom v Sun Life  Ch 69 (CA
[v] Kumarasamy v Edwards  UKSC 40