Fitness for habitation in rented homes

Landlords must ensure that properties they rent out are fit for human habitation.

The main source of this duty is section 9A of the Landlord and Tenant Act 1985 which was inserted by the Homes (Fitness for Human Habitation) Act 2018. A property might be unfit because of:

• disrepair

• damp and mould

• water or sanitation problems

• health and safety hazards

There is a separate common law obligation which requires landlords to ensure that furnished properties are fit for habitation on the day of letting.

Where there are hazards in a property that make it unsafe or unfit, the local authority can take action. Local authorities use the Housing Health and Safety Rating System to assess hazards in rented homes.

Overlap with repairing obligations and defective premises

Landlords have a separate obligation under section 11 of the Landlord and Tenant Act to make repairs to the structure and exterior of the property. They must also keep in repair and working order installations such as boilers, pipes and electrics.

A repair issue might also mean a property is unfit for habitation. The landlord would be responsible for resolving the issue under both sets of rules.

Find out more about repairs under section 11 on Shelter Legal.

Landlords and other people working on or constructing a property have a duty of care under the Defective Premises Act 1972.

The County Court has used case law on defective premises and the definition of 'fit for human habitation' when considering claims under the section 9A of the Landlord and Tenant Act 1985 and 'fitness for human habitation'.[1]

Find out more about defective premises on Shelter Legal.

Section 9A of the Landlord and Tenant Act 1985 creates an implied term that a landlord must ensure a dwelling they let out is fit for human habitation. An implied term is treated as though it is part of the contract between the landlord and tenant. The property must be fit for habitation on the day of letting and throughout the tenancy.[2]

Where a home is unfit, the landlord must take steps to remedy this. The landlord might need to make improvements to the property as well as carrying out repairs to remedy a defect.

Section 9A overrides what is written in the contract, unless the contract gives the tenant additional rights. Landlords cannot avoid their obligations by writing in a term in the agreement that says section 9A does not apply.[3]

The tenant must allow the landlord access to remedy a defect provided the landlord gives reasonable notice. What amount of notice is reasonable might depend on how serious the problem is and the extent of the works.

When a property is unfit for habitation

A property is unfit for habitation if it is not reasonably suitable for occupation because of a defect relating to:[4]

• repairs

• damp

• stability

• ventilation

• water supply

• natural lighting

• internal arrangement

• drainage and sanitary conditions

• facilities for preparing food or disposal of waste water

• a hazard under the Housing Health and Safety Rating System

Hazards under the Housing Health and Safety Rating System

The Housing Health and Safety Rating System (HHSRS) is a framework used by local authorities to assess housing conditions. There is a list of 29 prescribed HHSRS hazards, including damp and mould, excess heat and cold, risk of falls and electrical hazards.

Hazards are divided into category 1 and 2. Category 1 hazards are the most serious where a local authority must take action.

A report by a local authority could be used as evidence that a property is unfit. There is no requirement that a local authority must have inspected for a property to be found unfit. It might be enough for a tenant to refer to the relevant parts of the HRSRS operating guidance.

The definition of hazard used when determining unfitness is any risk of harm to the health or safety of an actual occupier of a dwelling. This can arise from a deficiency in the dwelling, or any building or land in the vicinity. This is different from other assessments under the HHSRS which look at a notional vulnerable occupier.

Assessing whether a home is unfit

A home is unfit for human habitation if it is defective to the point where it is not reasonably suitable for occupation. Case law under previous legislation relating to fitness for habitation might be relevant when assessing a property.

The courts have held that a property is not reasonably fit for habitation if the state of repair means an occupier might be injured or experience injury to health as a result of ordinary use of the property.[5]

When assessing fitness, the question is whether the totality of the defects, taken altogether means that the property is not reasonably suitable for occupation.[6]

In a case relating to unfitness for the purposes of the Defective Premises Act 1972, the court held that the standard is whether the property is capable of occupation for a reasonable time without risk to the health or safety of the occupants. Unfitness might include defective foundations, a lift that breaks down regularly or where there is no safe means of escape.[7]

Unfitness and common parts

Where the tenant only has a tenancy of part of a building, the landlord's obligations on fitness for habitation also apply to any common parts in which they have a legal interest. For example, if the landlord owns the building and rents out individual flats. An estate or interest can include an easement. This is where a landlord has a right of way over a shared area. For example where a leaseholder has the right to use an entrance hall, owned by a separate freeholder.[8]

This means the landlord must ensure that both the tenant's property and common or shared areas are fit for habitation. This includes where a problem in a common part makes the tenant's property unfit.

When the fitness rules in section 9A do not apply

The landlord is not required to:[9]

• carry out works necessary because the tenant breached the contract or failed to use the property in a tenant like manner

• rebuild or reinstate the property after destruction or damage by fire, flood or storms

• repair or maintain anything the tenant is entitled to remove from the property

Where the landlord requires the consent of a superior landlord or third party, the landlord is not liable if they have taken reasonable endeavours to obtain consent and this has not been given.

A landlord is also not required to carry out works that would cause them to breach other legal obligations, for example planning permission or listed building consent.

Furnished properties and fitness for habitation

It is an implied term that furnished properties must be fit for human habitation on the day of letting.[10] This is a common law rule and is different from the implied term under section 9A. There is no statutory definition of what a furnished property must contain.

The landlord is in breach of the tenancy if the property is unfit to live in. This also applies if the unfitness is not obvious at the time of the letting but the tenant becomes aware of it during the tenancy.[11]

The definition of fitness is that used in common law, and includes where the property has defective drainage or sewerage, or insufficient water supply. The definition used for section 9A might also be relevant.

If the property is unfit for habitation on the day of letting, the tenant might be able to give up the tenancy without liability for rent.[12] Find out more about disrepair remedies for tenants.

A landlord is not normally liable to carry out works in a rented property until they have been put on notice of the problem.[13] This applies to the implied term that homes are fit for human habitation.

A landlord could be treated as being on notice of unfitness if they know about it, even if they have not had formal notification from the tenant. Where a property had been affected by widespread damp, the High Court held the landlord had become aware of the issue during his visit. This was despite the tenant’s failure to draw his attention to the individual areas.[14] A landlord might be considered to have knowledge of a defect where workmen or contractors employed by them were aware of the problem.[15]

There is no specific requirement for how a tenant should notify a landlord. Notice could be given verbally or in writing, including email or text messages. The information provided should be enough that a reasonable person would make enquiries about whether works are needed.[16]

The tenant should keep a copy of any communications they have with the landlord about disrepair. This could be used as evidence in any dispute about timescales or liability.

Notice about health and safety issues in common parts

Common parts in which the landlord has a legal interest are considered to be within the landlord’s control. For example, where a local authority landlord owns an entire block of flats let out to individual tenants. A tenant is not required to give the landlord notice of the defect before the landlord's obligation to carry out the works arises.[17]

If a tenant is aware of a fitness issue in common parts, but fails to report it to the landlord, any award of damages could be reduced because the tenant failed to act to mitigate their loss.[18]

Where the landlord does not own or have control of the common parts, the Supreme Court suggested that the landlord's obligation only arises once the tenant has put the landlord on notice.[19] This might be the case where the landlord has a leasehold interest in a single flat which they have let out.

A landlord cannot charge a tenant directly for carrying out works necessary to make a home fit for habitation. Landlords are prohibited from including any term that limits their obligations under section 9A or imposes any penalty or obligation on the tenant in enforcing their rights.[20]

Any fee for carrying out works is likely to be banned under the Tenant Fees Act. The landlord can charge the tenant for the costs of works necessary because the tenant breached the contract. Find out more about banned tenant fees.

Where the tenancy agreement includes a variable service charge, a landlord might be able to use this to recover costs of works. For example, where the landlord has made improvements to common areas and the tenancy agreement allows for this to be recovered from the tenants in the building. Services charges must be reasonably incurred and for work or services of a reasonable standard.

The landlord might try to increase the rent to recover costs of works. There are statutory limits on rent increases for most tenants. The tenant might be able to challenge an increase.

Find out more about rent and service charge increases for private tenants.

If a landlord fails to ensure a home is fit for habitation, the tenant might be able to:

• take court action

• get help from the local authority

• make a complaint to the landlord

Court action where a property is unfit

A tenant can bring a County Court claim against the landlord for breach of an implied or express term in a tenancy agreement. This includes failing to remedy a defect that makes a home unfit for human habitation.

The tenant could ask for an order for:

• specific performance, to get the landlord to carry out works

• damages for the breach

The County Court has held that expert evidence regarding a health hazard is not a necessity for the court to find that a property is not fit for human habitation.[21]

Legal representation to take court action

Tenants need legal assistance to make a claim. Legal aid might be available where there is a. serious risk of harm to the health and safety of the occupiers

The tenant must be financially eligible. Financial eligibility for legal aid is assessed based on the tenant's income and capital. A person must have a low income or be in receipt of certain benefits to be eligible for legal aid.

Find out more about legal aid for housing problems.

A tenant who is not financially eligible for legal aid might be able to get help under a conditional fee agreement. This is also known as a ‘no win no fee’ agreement.

Counterclaims based on unfitness

A claim for damages could also be raised as a counterclaim or defence to a possession claim based on rent arrears. Legal aid is available for defending possession claims if the person is financially eligible.

Local authority enforcement where there are hazards

A tenant of a private landlord or housing association whose home is unfit for habitation could contact the local authority for help. This might be from the environmental health department or private sector standards team.

Local authorities should inspect accommodation where appropriate to assess whether any hazard exists under the Housing Health and Safety Rating System (HHSRS).[22] The authority assesses whether any category 1 or category 2 hazards are present. A category 1 hazard means that the local authority must take action. A category 2 hazard means the local authority has the power to take action.

Where the authority finds hazards, it can take action including:

• recommending the landlord carry out works

• making an improvement order requiring the landlord to do works

• making a prohibition order preventing anyone living in the property

This option is not available to local authority tenants. Environmental health is part of the local authority. A local authority cannot take action against itself.

Find out more about local authority duties on health and safety hazards.

Complaints about an unfit home

The tenant could make a complaint to a landlord or agent where work is not carried out or not done within a reasonable period of time.

Social landlords should have a complaints policy which sets out how they will deal with complaints. If the tenant is unhappy with the outcome, they might be able to escalate the complaint to the Housing Ombudsman. Find out more about complaints to the Housing Ombudsman.

A private tenant who is unhappy with the way a letting agent dealt with a repair issue might be able to complain to a redress scheme. Find out more about complaints about letting agents.

The rules on fitness for habitation apply to most tenancy agreements, including secure, assured, assured shorthold and Rent Act tenancies. It applies equally to private and social landlords.

The term is also implied into agricultural occupiers agreements. References to an employer and employee relationship are treated as landlord and tenant relationship.[23] These agreements are licences which would be otherwise exempt. Find out more about agricultural occupiers.

The rules do not apply to:[24]

• other licence agreements

• business tenancies

• agricultural holdings

• crown tenancies, such as lets by government departments

• tenancies where a local authority is the tenant

• tenancies that began before 24 October 1961

• tenancies with a fixed term of seven years or more, with some exceptions

The tenancy or licence agreement might contain express terms that give the landlord similar obligations to ensure the property is fit for habitation.

Where a tenancy began before the Act came into force in March 2019, the rules might only apply from a certain date.

Fixed term tenancies of seven years or more

The rules on fitness for habitation do not apply to most tenancies with a fixed term of seven years or more. This includes long leases. There is an exception for fixed term tenancies granted by social landlords, including:

• local authority flexible tenancies

• fixed term assured and assured shorthold tenancies granted by social housing providers

These tenancies must have been granted on or after 1 April 2012.

Shared ownership tenancies are not covered. Shared owners are responsible for most repair and safety issues in their property.

A tenancy with a fixed term of more than seven years is covered by section 9A if it has a break clause that allows the landlord to end it before seven years.[25]

A shorter fixed-term agreement that allows the tenant to renew the tenancy so that the total term lasts for more than seven years is not covered by section 9A. For example, a three year fixed term tenancy with an option to renew for a further five years. Section 9A does apply if there is a break clause that allows the landlord to end it before seven years.[26]

When the fitness rules apply to tenancies that started before March 2019

Section 9A came into force on 20 March 2019. This means the rules on fitness for habitation can apply from different dates depending on when the tenancy began.[27] A tenant cannot take action relating to a fitness problem that only existed before the rules applied to them.

The rules apply from the outset to periodic or fixed term tenancies granted on or after 20 March 2019.

For periodic tenancies that began before 20 March 2019 and have not been renewed the rules apply from 20 March 2020.

For periodic tenancies that arose automatically after 20 March 2019 on the expiry of a fixed term that began before that date, the rules apply from date the periodic tenancy began.

For replacement fixed term tenancies granted after 2019 on the expiry of a fixed term that began before that date, the rules apply from the date the new fixed term began.