Fitness for human habitation

The Homes (Fitness for Human Habitation) Act implies an implied agreement in most tenancy agreements that the property will be fit for human habitation at the beginning of and throughout the tenancy.

This applies to all tenancies which started on or was renewed on or after 20th March 2019. It requires landlords ensure that they are meeting their responsibilities with regards to property standards and safety. 

Is the property fit for human habitation?

The main 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-

·         the building requires repair works or is unstable

·         there is an issue with damp  

·         the building has an unsafe layout

·         there is not enough natural light

·         there is insufficient ventilation in the property

·         there is a problem with the water supply or the drainage

·         there are inadequate facilities for preparation and cooking of food and for the disposal of waste water

·         Any of the 29 ‘prescribed hazards’ set out in the – this is defined as any matter or circumstance amounting to a category 1 or 2 hazard under the Housing Health and Safety (England) Regulations 2005

How to establish unfitness

Simply the presence of one or more of the above factors in a property is not enough to establish that a property is unfit. A property is only deemed unfit for human habitation if 'it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition’.  The approach is to consider whether the totality of the defects, taken in the round, means that the property is not reasonably suitable for occupation.

Each case is decided upon its own merits. 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.

When deciding whether a property is fit, it is assessed against objective standards, rather than the health or frailty of the actual occupier. It is decided based on whether a 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’

·         the 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.

Is the Landlord always responsible?

The landlord’s liability to fix the defects in the property does not start until the landlord has had notice of the problems and has been allowed a reasonable period to rectify the problems. 

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

·         the unfitness was caused by the tenant’s failure to use the property in a tenant-like manner (this means that the tenant is obliged to avoid or repair negligent damage, and do the minor acts necessary to keep the premises in a reasonable state)

·         the dwelling needs to be rebuilt 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, e.g. 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    

Tenant remedies

Where a property is shown to be 'not reasonably suitable for occupation’, the tenant may take court action for breach of contract. The tenant can apply for an order for specific performance requiring the landlord to undertake necessary repairs, and to claim 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 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.