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Fitness for human habitation

This content applies to England

Implied term that rented dwellings must be fit for occupation at the beginning and throughout the tenancy.

Landlord's obligations

It is an implied term of a residential tenancy agreement that the landlord shall ensure that the dwelling is fit for human habitation:[1]

  • when the tenancy is granted, and
  • for the duration of the tenancy

This term adds to landlords' repairing obligations implied into tenancy agreements by section 11 of the Landlord and Tenant Act 1985.

A landlord cannot avoid her/his obligations by contracting out. As in section 11 cases, any express term in a tenancy agreement will be void to the extent that it tries to exclude or limit the effects of this implied term, or to impose any contractual penalty on the tenant for relying on it.[2]

The obligations cover both private and public landlords.

Tenancies covered

The term will be implied into the following tenancy agreements of residential property in England:[3]

tenancies granted or renewed on or after 20 March 2019

  • new tenancies for a term of less than seven years granted on or after 20 March 2019, including new periodic tenancies. A break clause in tenancy agreements for a term of more than seven years will not evade this provision unless it is in favour only of the tenant[4]
  • secure, introductory or assured tenancies for a fixed term of seven years or more (these are social housing tenancies to which section 11 of the Landlord and Tenant Act 1985 applies) granted on or after 20 March 2019

tenancies arising on expiry of a fixed term on or after 20 March 2019

  • statutory or contractual periodic tenancies arising on or after 20 March 2019 on the expiry of a fixed term tenancy granted before that date. This applies whether or not the fixed term was for a term of seven years or more

all other periodic or secure tenancies from 20 March 2020

  • all periodic or secure tenancies that were in existence on 20 March 2019 and have not been renewed since. This applies whether or not the fixed term was for a term of seven years or more

Tied accommodation occupied by agricultural workers

The term will also be implied into contracts of employment of agricultural occupiers where reference to employer/employee relationship are treated as landlord/tenant relationship.[5] This is necessary because many agricultural occupancies are licences rather than tenancies (due to the fact that the employee is required to occupy the accommodation under the terms of her/his contract of employment) and would not be covered otherwise.

Lettings not covered

The term is not implied into licence agreements.

The term is also not implied into shared ownership leases[6] involving a combination of leasehold owner-occupation and assured tenancy agreements for a fixed term of seven years or more.

Fitness for human habitation

The key question when determining unfitness for human habitation is whether a property is 'not reasonably suitable for occupation in that condition' because of one or more of the following factors:[7]

  • repairs
  • freedom from damp
  • internal arrangement
  • natural lighting
  • ventilation
  • water supply
  • drainage and sanitary conditions
  • stability
  • facilities for preparation and cooking of food and for the disposal of waste water
  • any ‘prescribed hazard’ - this is defined as any matter or circumstance amounting to a category 1 or 2 hazard under the Housing Health and Safety Rating System (HHSRS).

Hazards under the HHRSR cover most problems relating to:

  • hygrothermal conditions - damp and mould growth, excess cold, excess heat
  • pollutants (non-microbial) - asbestos and manufactured mineral fibres, biocides, carbon monoxide and fuel combustion products, lead, radiation, uncombusted fuel gas, volatile organic compounds
  • space, security, light and noise - crowding and space, entry by intruders, inadequate lighting, exposure to noise
  • hygiene, sanitation and water supply - domestic hygiene, pests and refuse, food safety, personal hygiene, sanitation and drainage, water supply for domestic purposes
  • falls - different forms of falls associated with baths, stairs, steps, between levels and on level surfaces
  • electric shocks, fires, burns and scalds - electrical hazards, fire, flames, hot surfaces and materials
  • collisions, cuts and strains - collision and entrapment, explosions, ergonomics, structural collapse and falling elements.

The government has published non-statutory guidance for tenants, landlords and local authorities in relation to the kind of problems which may render a property unfit under these provisions.

Establishing unfitness

The mere presence of one or more of the above factors in a property is not enough to establish that a property is unfit.

A dwelling shall be regarded as unfit for human habitation only if 'it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition'.[8] This is a question of fact in each case.

The presence of a hazard under the HHSRS

The existence of any category 1 or 2 HHSRS hazard is only one of the factors that a court may take into account when determining if a dwelling is unfit.

Although it would be good evidence, there is no requirement for a formal inspection and HHSRS assessment with rating report and scoring to show that a hazard exists and that a dwelling is not reasonably suitable for occupation in its present condition. Reference to relevant parts of the HRSRS operating guidance[9] could be enough to determine that a dwelling is unfit.

Expert evidence from a surveyor or independent environmental health practitioner could be obtained to establish unfitness and the landlord’s liability in complex cases. In simpler cases, such as lack of heating, it will be possible for the court to make a finding of unfitness on the tenant’s own non-expert evidence.

Reasonably suitable for occupation in that condition

Unlike the assessment carried out by environmental health officers under the HRSRS where the risk and seriousness of harm to health or safety is assessed against the standard of a notional vulnerable occupier, the fitness for human habitation of a dwelling is assessed against objective standards, rather than the health or frailty of the actual occupier.[10]

The issue is whether the reasonable tenant would regard the condition of the property as reasonably suitable for occupation.

Until new case law develops, the following decisions made under previous legislation in relation to unfitness are likely to be still relevant:

  • the standard of fitness is that of ‘the ordinary reasonable man’ [11]
  • premises must be ‘decently fit for human beings to live in’ [12]
  • the duty of the landlord is to keep the property fit for human habitation and the unfitness of one room, particularly in a small dwelling, may be a most material detraction from the enjoyment of the tenant [13]
  • in considering defects in a property, the correct approach is to consider whether the totality of the defects, taken in the round, means that the property is not reasonably suitable for occupation [14]

Assistance may also be drawn from case law in relation to the meaning of ‘fit for habitation’ in section 1 of the Defective Premises Act 1972 (duty to build dwellings properly), although this section does not impose a continuing obligation that the dwelling will remain fit. The standard for fitness adopted in relation to such cases is whether the property is ‘capable of occupation for a reasonable time without (i) risk to the health or safety of the occupants or (ii) undue inconvenience or discomfort to the occupants.’ In some circumstances, inconvenience and discomfort alone may be enough to render a property unfit.[15]

Landlord's liability does not arise

The landlord’s obligations and liabilities do not arise if:[16]

  • the unfitness was caused by the tenant’s failure to use the premises in a tenant-like manner
  • the dwelling needs to be rebuilt or reinstated following destruction or damage by fire, storm, flood or other inevitable accident
  • repair or maintenance is required to anything the tenant is entitled to remove from the dwelling
  • carrying out works or repairs would cause the landlord to breach other legal obligations, for example breaching of planning permission or listed building consent
  • the landlord requires the consent of a superior landlord or other third party (for example of a neighbouring leaseholder or freeholder, or of a council) and despite reasonable endeavours to obtain it, consent has not been given
  • the unfitness arises because of the tenant’s breach of contract, for example the tenant has denied access for repairs
  • the landlord is not liable for disrepair because of an exclusion or modification by court order under section 12 Landlord and Tenant Act 1985 - that is, where the court authorises the landlord to limit by express term in the agreement the extent of her/his repairing obligations

Common parts

As in section 11 cases, if the dwelling forms part of a building, the obligations extend to any common parts of the building in which the landlord has an estate or interest.[17] Therefore, where a landlord owns a block of flats, the tenant will have the right to take legal action for any unfitness that arises from the common parts, such as the hallway or the stairs.

Notice of unfitness

The landlord’s liability to remedy the defects will not start until the landlord has had notice of the unfitness and has had a reasonable period to rectify the unfitness. Notice can be given by the tenant or a third party.

However, the landlord will be deemed to be on notice and liable to remedy as soon as the unfitness arises if the dwelling is part of a building and the unfitness relates to the common parts or the exterior.[18]

Tenant's implied obligation to grant access

A landlord's obligation to keep the dwelling fit for human habitation carries an implied obligation on the tenant to allow access to the dwelling, only at reasonable times of the day and on at least 24 hours' written notice, to the landlord or her/his agent in order to inspect its conditions.[19]

This is additional to the tenant's implied obligations to grant access for repairs to landlords and agents for the work be carried out.

Tenants’ rights and remedies

Where a property is shown to be 'not reasonably suitable for occupation’, the tenant may take court action for breach of contract on the grounds that the property is unfit for human habitation.

The tenant can apply for an order for specific performance requiring the landlord to reduce or remove unfitness,[20] and claim damages.

Damages

If the landlord's breach of the term is established, the tenant may be entitled to compensation in respect of both:

  • general damages - these may be awarded for harm, discomfort, loss of enjoyment, pain and suffering, shock, physical injury, distress and inconvenience
  • special damages - these will typically include the value of any possessions damaged by the unfitness, the cost of works carried out by the tenant and, if the tenant had to move out because of the disrepair, the cost of alternative accommodation

The amount of compensation may be ascertained in a number of different ways including (but not limited to) a notional reduction in rent. The exact amount will be related to the length of time the landlord has been in breach of contract, and to the level of distress and inconvenience experienced by the tenant. The assessment is based on the seriousness of the conditions and the length of time they have existed, as well as the seriousness of its effects on the tenant, such as hardship, distress, inconvenience and 'loss of amenity’. In very serious cases, a court could award several thousand pounds a year.

Legal aid

As in disrepair cases, legal aid is available only in relation to the removal or reduction of a serious risk of harm to the health or safety of the occupiers.

Claim for damages are out of scope save as a counterclaim in possession proceedings.

Pre-action protocol

The Pre-action Protocol for Disrepair Cases applies in all residential housing disrepair cases. It outlines the procedure and timetable that the parties to a case must take before starting a claim.

For fitness cases that do not include allegations of disrepair, it is likely that the court would expect a similar procedure to be followed.

Wales

The information on this page reflects how the law applies to rented property in England. Visit Shelter Cymru for information about the law in Wales.

[1] s.9A Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.

[2] s.9A(4) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.

[3] s.9B Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.

[4] s.9B(8) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.

[5] s.9C Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.

[6] s.9B(1)(b) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.

[7] s.10(1) Landlord and Tenant Act 1985, as amended by s.1(4) Homes (Fitness for Human Habitation) Act 2018.

[8] s.10(1) Landlord and Tenant Act 1985, as amended by s.1(4) Homes (Fitness for Human Habitation) Act 2018.

[9] Annex D (Profiles of potential health and safety hazards in dwellings), HHSRS Operating Guidance on housing inspections and assessment of hazards, MCHLG, February 2006.

[10] s.10(3) Landlord and Tenant Act 1985, as amended by s.1(4) Homes (Fitness for Human Habitation) Act 2018.

[11] Hall v Manchester Corporation [1915] L.J. Ch. 732, HL.

[12] Jones v Green [1925] 1 K.B. 659.

[13] Summers v Salford Corp [1943] AC 283, [1943] 1 All ER 68.

[14] Wyse v Secretary of State for the Environment [1984] J.P.L. 256.

[15] Rendlesham Estates Plc v Barr Ltd [2014] EWHC 3968 (TCC).

[16] s.9A(2) and (3) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.

[17] s. 9A(6) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.

[18] Edwards v Kumarasamy [2016] UKSC 40.

[19] s.9A(7) and (8) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.

[20] s. 9A(5) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.

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