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Condition on day of letting

This content applies to England & Wales

There are terms concerning the condition of a property on the day of letting implied into the tenancy agreement.

A landlord may be in breach of the tenancy agreement if the property is 'not fit to be lived in' on the day of the letting. The rules differ depending on whether the premises are furnished or unfurnished.

Furnished premises

Where premises are let furnished, they must be 'fit to be lived in' on the day the letting begins.[1] This will also be true where the unfitness is not obvious at the time of the letting, but comes to light during the tenancy.[2] If the property is unfit, the landlord will be in breach of the tenancy agreement.

The courts have decided that premises are unfit for human habitation at common law if they:

  • are infested with bugs
  • have defective drainage or sewerage systems
  • are infected
  • have a lack of safety, or
  • have an insufficient water supply.

In addition, the courts may consider the statutory definition of unfitness in considering whether premises are unfit at common law. The statutory test of fitness for human habitation, contained in section 604 of the Housing Act 1985, remained in place until 6 April 2006. After that date, the Housing Health and Safety Rating System applies, under the Housing Act 2004. Section 604 (of the 1985 Act) is potentially relevant for claims of unfitness prior to April 2006, while the new system of categorised hazards may have greater relevance in respect of subsequent claims.

Unfurnished premises

There is no implied term for unfurnished lettings.[3] The Court of Appeal has indicated that for such a covenant to be extended to unfurnished lettings the initiative must come from Parliament through legislation and not from the courts.[4]

Premises let on licences

Where premises have been let on licences, the courts have been more willing to impose a requirement that the property must be fit for human habitation whether they are furnished or unfurnished.

Breach of implied terms

If the landlord fails to comply with this implied covenant, the tenant is entitled to quit the property immediately without liability for rent,[5] and may also sue for breach of contract[6] - see the section on Taking action on disrepair.

[1] Smith v Marrable [1843] 11 M& W 5.

[2] Harrison v Malet [1886] 3 TLR 58.

[3] Hart v Windsor [1844] 12 M&W 68 (houses).

[4] McNerny v Lambeth LBC (1988) 21 HLR 188.

[5] Wilson v Finch-Hatton [1887] 2 Ex D 336.

[6] Harrison v Malet [1886] 3 TLR 58.

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