Fitness for human habitation implied terms in tenancy agreements
A landlord’s obligation to ensure rented dwellings are fit for occupation at the beginning and throughout the tenancy is implied in most agreements.
- Landlord obligations to ensure fitness for habitation
- Tenancies to which the fitness for habitation requirement applies
- Lettings not covered by the fitness for habitation requirement
- Fitness for human habitation
- Establishing unfitness
- Landlord's liability does not arise
- Common parts
- Notice of unfitness
- Tenant implied obligation to grant access
- Tenant rights and remedies
Landlord obligations to ensure fitness for habitation
It is an implied term of a residential tenancy agreement that the landlord shall ensure that the dwelling is fit for human habitation:
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 their obligations by contracting out. As in section 11 cases, any express term in a tenancy agreement are 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.
The obligations cover both private and public landlords.
Tenancies to which the fitness for habitation requirement applies
The term is implied into the following residential tenancy agreements in England on/after the following dates:
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 does not evade this provision unless it is in favour only of the tenant
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 initial fixed term was for a term of seven years or more
Where a local authority tenant has an introductory tenancy that commenced before 20 March 2019 and was extended at some point after this date, they will not be covered until the extension expires.
All other periodic or secure tenancies from 20 March 2020
all periodic or secure tenancies that were already in existence on 20 March 2019 and have not been renewed since. This applies whether or not the initial fixed term was for a term of seven years or more
Tied accommodation occupied by agricultural workers
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 their contract of employment) and would not be covered otherwise.
Lettings not covered by the fitness for habitation requirement
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:
freedom from damp
drainage and sanitary conditions
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).
Government non-statutory guidance for tenants, landlords and local authorities details the kind of problems which may render a property unfit under these provisions.
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'. 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 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 is 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 
The issue is whether the reasonable tenant would regard the condition of the property as reasonably suitable for occupation.
The following decisions made under previous legislation in relation to unfitness are likely to still be relevant:
the standard of fitness is that of ‘the ordinary reasonable man’ 
premises must be ‘decently fit for human beings to live in’ 
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 
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 
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 remains 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.
Landlord's liability does not arise
The landlord’s obligations and liabilities do not arise if:
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 their repairing obligations
Where a landlord owns a block of flats, the tenant has 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 does not start until the landlord has had notice of the unfitness and has had a reasonable period to rectify the unfitness. The tenant or a third party can give notice.
The landlord is 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.
Tenant 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 their agent in order to inspect its conditions.
This is additional to the tenant's implied obligations to grant access for repairs to landlords and agents for the work be carried out.
Tenant 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.
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 is 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.
It is not possible to claim damages for a period during which the fitness for human habitation term was not implied into a tenancy agreement. For example, if the term is implied from March 2020, damages can be awarded only for any period after this date.
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 except as a counterclaim in possession proceedings.
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.
On 13 January 2020 the Protocol was revised to include claims relating to fitness for human habitation.
Last updated: 22 March 2021
s.9A Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.
s.9A(4) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.
s.9B Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.
s.9B(8) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.
s.9C Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.
s.9B(1)(b) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.
s.10(1) Landlord and Tenant Act 1985, as amended by s.1(4) Homes (Fitness for Human Habitation) Act 2018.
s.10(1) Landlord and Tenant Act 1985, as amended by s.1(4) Homes (Fitness for Human Habitation) Act 2018.
Annex D (Profiles of potential health and safety hazards in dwellings), HHSRS Operating Guidance on housing inspections and assessment of hazards, MCHLG, February 2006.
s.10(3) Landlord and Tenant Act 1985, as amended by s.1(4) Homes (Fitness for Human Habitation) Act 2018.
Hall v Manchester Corporation  L.J. Ch. 732, HL.
Jones v Green  1 K.B. 659.
Summers v Salford Corp  AC 283,  1 All ER 68.
Wyse v Secretary of State for the Environment  J.P.L. 256.
Rendlesham Estates Plc v Barr Ltd  EWHC 3968 (TCC).
s.9A(2) and (3) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.
s. 9A(6) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.
Edwards v Kumarasamy  UKSC 40.
s.9A(7) and (8) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.
s. 9A(5) Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018.