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The horrifying events surrounding the Grenfell Tower tragedy emphasised the importance of maintaining properties subject to occupational tenancies. On 20 March 2019, the Homes (Fitness for Human Habitation) Act 2018 will come into force.
It will apply to new residential tenancies (of less than 7 years) as well as a renewal of an existing tenancy from 20 March 2019. The new rules will also apply to fixed term tenancies which become periodic on or after this date.
The Act amends the Landlord and Tenant Act 1985 to require that residential rented accommodation is provided and maintained in a state satisfactory for human habitation.
The aim of the new law is to improve standards in the private and social rented sectors by conferring an obligation on landlords (or, crucially, agents acting on their behalf) to keep their property in good condition. Failure to do so will allow tenants to bring a statutory claim against their landlords for breach of contract.
The criteria for ‘good’ condition is assessed by reference to Schedule 1 of the Housing Health and Safety Rating System (England) Regulations 2005 and includes issues not currently covered by a landlord’s legal repair responsibilities, such as damp caused by design defects like lack of ventilation.
Irrespective of the socio-political incentives for enacting the bill, the bottom line is simple; if a landlord or agent fails to maintain their property subject to these regulations, tenants will be able to apply directly to the Court for an injunction to compel a landlord to carry out works, or for damages (compensation) for the landlord’s failure to keep the property in good repair.
The Landlord’s perceived failure to maintain the property is not entirely subject to the tenant’s discretion. The Act contains an implied covenant that the landlord (or agent acting under the Landlord’s written authority) may enter the property to inspect its condition if 24 hours’ notice is given to the tenant and the inspection occurs at a reasonable time of day, namely during or immediately after normal working hours.
There are certain tenancies which are exempt, such as agricultural tenancies as defined by the Agricultural Holdings Act 1986, or a farm business tenancy. Others include leases granted after 3rd October 1980 to local authorities, co-operative housing associations or certain educational institutions.
The HFHHA 2018 does not exonerate tenants from maintaining their own possessions – the Landlord is not required to repair or maintain anything which the tenant is entitled to remove from the dwelling. Nor must they carry out works or repairs requiring the consent of a superior landlord (or other third party) where consent has been unreasonably withheld.
Tenants are expected to provide reasonable notice of the unfitness and give the Landlord reasonable time to repair before they have breached their statutory duty.
Although the Act seems to impose onerous obligations on the Landlord, on further inspection the intention is to codify the Landlord’s obligations conferred in standard leases and merely offer the tenant statutory recourse for any breach. Landlords are not required to do anything more than they would have previously, yet they are subject to a greater risk of liability for adopting an apathetic approach to the state of the property to increase their margins.