By Catherine Rowlands
The Homes (Fitness for Human Habitation) Act 2018 travelled through Parliament on a wave of goodwill from all sides, engendered by a realisation, post-Grenfell, of the need to update legislation which was enacted to ensure that those in low-rent housing were not living in the kind of conditions that shame a civilised society. It was not opposed by any organisations representing landlords or filibustered out by Conservative MPs, as was the fate of previous attempts to bring in this legislation. This time, the Government hailed it as "a landmark law".
The Act is deceptively simple on its face, consisting of two sections, one of which deals with commencement and extent (it does not apply in Wales, which has its own legislation). It will come into force on 20 March 2019.
Section 1 is the meat of the Act and amends the Landlord and Tenant Act 1985 to insert a new section 9A, 9B and 9C. The effect of section 9A is to imply a new term into any lease for less than seven years that is granted after 20 March 2019 and into any existing short lease from a 20 March 2010. Landlords therefore have a short period to prepare for the impact of the Act. From then on, it will be an implied term that the property will be fir for human habitation when let and will be kept fit during the life of the lease.
It has long been an implied term of a lease of furnished premises that they are fit for habitation on letting – but not that they will be kept fit for habitation: see Wilson v Finch Hatton (1877) 2 Ex D 336 where the Court held "that it should be reasonably healthy, and so not dangerous to the life of those inhabiting it".
In 1985, that implied term was given statutory form in the Landlord and Tenant Act 1985. This Act also contains the well-known section 11 which implies into a short lease a term which gives the tenant the right to repairs to the structure and exterior of a property and various fittings.
It was less well-known that section 8 of the 1985 Act also implied a term that the property would be fit for habitation at the start of the tenancy and kept fit thereafter – because that was limited to leases where the rent was no more than £80 in London and £52 outside – that is, per annum. There are not many of those! This provision had become dead letter within a fairly short time of being enacted. What the 2018 Act does is to breathe new life into it.
What, then, does fit for human habitation mean? The first place to look is section 10 as unamended. It does not give a clear definition: it is couched in somewhat vague terms.
If the property is "not reasonably suitable for occupation" having regard to matters such as its state of repair and freedom from damp, it is not fit for human habitation. In Johnson v Sheffield City Council  C.L.Y. 1445, the Court was called upon to interpret a term of the tenancy that a property would be "fit to live in" and equated it to section 604 of the Housing Act 1985, which calls for a property to be free from "serious" disrepair and to be free from dampness prejudicial to the health of the occupants. Words like "reasonable" and "serious" are matters for the judgment of the Court, it would seem.
Section 10 is amended by the Homes (Fitness for Human Habitation) Act 2018 to add a provision that a property will not be fit for habitation if it has a prescribed hazard which makes it "not reasonably suitable for occupation". These are the prescribed hazards contemplated by section 2 of the Housing Act 2004. They are hazards that pose a risk to the health or safety of an occupier. It is not enough that one of these hazards exists – the presence of the hazard must mean that the property is "not reasonably suitable for occupation".
Further guidance can be gained from some older cases. In Edwards v Etherington (Ry. & M. 268; S. C., 7 D. & R. 117), for example, Lord Tenterden referred to such serious problems as would mean that the property was unsafe to reside in so that the tenant was getting nothing for his rent. In Smith v Marrable 152 E.R. 693, the bugs were "so intolerable as to render it impossible that he could live in [the property] with any reasonable comfort". And in Wilson v Finch Hatton (1877) 2 Ex D 336 the Court asked, with some passion,
"Is it not, then, clear, that the tenant is entitled to find the drains in such a condition that she and her family and servants can safely enter and live in the house?"
In short, the standard is high (or low, depending on the point of view!) before the Court will be satisfied that a property is not reasonably suitable for occupation. However, standards today may be higher than in the 19th century. The Court will be looking at some defect that poses a risk to the health and safety of a tenant which means that the property is uninhabitable. Mere disrepair is not enough.
It is always a question of fact as to whether there is a risk to health. The main battlefields will be dampness and associated mould growth. There is a widely held but badly evidenced belief that mould is bad for people, and I hope that a body of experts will become available to consider this issue.
Dampness caused by condensation does not fall within section 11 of the Landlord and Tenant Act 1985 in most cases. It will not be a defence for a landlord to say that the dampness does not arise from any disrepair once section 9A can be relied upon. However, it will be for the tenant to show that it is a risk to the health of the occupiers – and it must be an actual, not a hypothetical, occupier. A small amount of mould will presumably not meet the test of "not reasonably suitable for occupation" having regard to the property as a whole.
The landlord is not required to remedy defects that arise from the act or default of the tenant. Where condensation dampness is caused by a tenant blocking up vents, failing to heat the property adequately or generating excessive amounts of moisture the landlord may have a defence. It will be a difficult factual dispute, with the onus on the tenant to prove that the landlord is responsible for carrying out the works required.
One additional benefit for landlords is an implied term where section 9A applies that a landlord can enter the property to inspect its condition and state of repair at reasonable times of day on 24 hours' notice.
Most landlords (dare I say so, all social landlords?) would not want to see their tenants living in accommodation that is a threat to their health and safety. For them, the standards imposed by section 9A will add little to the plethora of regulations that already apply, such as section 82 of the Environmental Protection Act 1990, the Gas Safety (Installation and Use) Regulations 1998, HMO licensing and section 4 of the Defective Premises Act 1972 and to their own standards. This will not mean, however, that section 9A can be ignored.
The revival of the fitness provision has been welcomed by tenants' groups and by responsible landlords, but is undoubtedly open to abuse, in the same way, that section 11 has been over the years.
Although most properties in the social housing sector are likely to meet the decent homes standard and therefore be free from the sorts of defects that could make a property unfit for human habitation, this will not stop unscrupulous people touting for trade as they did for section 11 and currently do for fraudulent road traffic cases.
When the phone rings and someone asks you, not whether you had PPI but whether you have damp and mould, the chances are you are going to be interested in bringing a claim, especially when the words 'no win no fee' are bandied about. Free repairs to your property – Claim your rent back as one advert I have seen proclaims.
It is therefore incumbent on landlords to ensure that there is a proper system in place for responding to letters before action and recording the action taken. Given that this is a question of health and safety, it is important to ensure that whoever prepares reports for the landlord has an appropriate qualification and is familiar with the duties of an expert in relation to giving evidence in Court.
Pictures are worth a thousand words and given the ubiquity of digital cameras, there can be no excuse for failing to record the state of the property complained of by way of photographs at the earliest possible opportunity.
The temptation will be to settle cases at an early stage to obtain a quick and cheap outcome. However, this may encourage other claims and lead to unmanageable caseloads. Choosing a good case to fight may well pay dividends down the line. There will undoubtedly be a grey area between the property that is "less than perfect but not unfit for human habitation" and the property that is "impossible to live in with any reasonable comfort" and that will be the area where case law will need to give further guidance. No doubt the Courts will be busy with this issue for years to come.