Homes (Fitness for Human Habitation) Act 2019 and What It Means for You

On 20th March 2019, the Government's flagship private rented sector Homes (Fitness for Human Habitation) Act 2019 came into force. This is what it means for landlords with properties in England.

It's important to understand this law is fantastic for tenants who are at the mercy of rogue landlords but it's important for good landlords to understand that this new legislation will not affect them. It is solely emphasising landlord's obligations to their tenants to keep the property and structure in a good state of repair.

Are you a rogue landlord? No? Good, you've got nothing to worry about and you don't need to make any changes (provided you're compliant with all other legislation surrounding your obligations as a landlord).

One common question we're regularly asked over the last 12 months is how this law will affect landlords with tenants who don't understand their obligations with regards to keeping the property in a tenant-like manner and repairs that are not the responsibility of the tenant. This shouldn't be a factor. So, where a property has mould which is found to be caused by tenant lifestyle (eg. drying clothes indoors, not ventilating the property, wiping away condensation, etc), the landlord will have no obligation to resolve this. Similarly, where a tenant causes damage or other disrepair (whether through their own actions or negligence), the same will apply.

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However, where it is found that the landlord is at fault, they will be obligated to act in a timely manner, as they always have been.

The key difference between the Fitness for Human Habitation Act 2019 and legislation already in place is that this act gives greater power to tenants to be able to seek redress via the court in the event the landlord fails to uphold their obligations, something we agree with. However, our opinion is that this law negates the need for landlords to be members of a property redress scheme but this small detail is irrelevant in the grand scheme of things. 

Ultimately, as I mentioned earlier in the comment, this law is to protect tenants who fall victim to rogue landlords and the sooner rogue landlords feel the long arm of the law with respect to their failings, the better.

The law has ALREADY come into force (20th March 2019) and serves to amend the Landlord and Tenant Act 1985.

The legislation specifically tells us that landlords (lessor) are NOT expected to carry out repairs that are the responsibility of the tenant (lessee) and that the implied covenant of keeping the property in a tenant like manner is unaffected by this act.

Where a tenant is in breach of their tenancy agreement and as a result causes disrepair, the landlord will not be held responsible to repair this. So, if the tenant refuses access for gas safety and as a result, a gas explosion kills their dog, you will not have any liability to the tenant provided it is stated in the tenancy agreement that they are to provide access (with reasonable notice, of course) to contractors for the purposes of remaining compliant with Gas Safety (Installation and Use) Regulations 1998, unless the tenancy is for longer than 7 years, in which case you're not responsible for gas safety, this responsibility falls onto the tenant. It's a shame about your property though, but it's not all bad news... You won't be required to rebuild the property in the event of destruction by fire, storm, floods or other accidents which are otherwise inevitable, which a gas explosion is inevitable if a tenant doesn't allow you to ensure their gas installations are safe.

What about tenant belongings? Well, it's quite obvious that these belong to the tenant and therefore you have no obligation under the act to repair these (but if you cause damage to their property, under civil law and Torts Act, possibly the wrong act, will give the tenant right to make a claim against you for damages).

So, what if, by carrying out a repair, it will put you in breach of another piece of legislation, what then? Well, quite simply, nothing. You don't need to do the repair.

And where you own a leasehold property and need the permission of the head lessor (often the freeholder) to carry out a repair, where after reasonable attempts have been made you haven't been given permission or otherwise permission has been declined, you will not be obligated to carry out the repair under the act, however, there are occasions where you have to act as Agent of Necessity (ie, if there are a burst pipe and the only way to get to it is through the communal area wall) and will be found to be negligent if you didn't act as agent of necessity.

The Homes (Fitness for Human Habitation) Act 2019, which came into force today (in case you'd forgotten since the second paragraph) also clarifies that landlords do NOT need to carry out repairs if they have arisen as a result of the tenant's breach of contract and they will not have to make good disrepair which the landlord not obliged to do so because of an exclusion or modification under section 12 of the Landlord and Tenant Act 1985.

For reference, and I'm only putting this here for reference, the L&T Act is a separate post altogether, Section 12 states:

"Restriction on contracting out of s. 11.

(1)A covenant or agreement, whether contained in a lease to which section 11 applies or in an agreement collateral to such a lease, is void in so far as it purports—

(a)to exclude or limit the obligations of the lessor or the immunities of the lessee under that section, or

(b)to authorise any forfeiture or impose on the lessee any penalty, disability or obligation in the event of his enforcing or relying upon those obligations or immunities, unless the inclusion of the provision was authorised by the county court.

(2)The county court may, by order made with the consent of the parties, authorise the inclusion in a lease, or in an agreement collateral to a lease, of provisions excluding or modifying in relation to the lease, the provisions of section 11 with respect to the repairing obligations of the parties if it appears to the court that it is reasonable to do so, having regard to all the circumstances of the case, including the other terms and conditions of the lease."

Moving swiftly on, you cannot sign away your obligations to the tenant under contract or tenancy agreement (which is a contract, as you know) and any effort to do so will be overturned by the courts and you'll be found to be in breach of the act. No warning or clarification necessary. Straight up breach. No ifs, buts, maybes or what ifs... unless it's what if the tenancy agreement is longer than 7 years, in which case, this act doesn't apply. Unsurprisingly, you will not be able to charge tenants a fee for not carrying out repairs which are your obligation.

"But the tenant only rents the house and not the path to the house, do I need to repair the broken slab that presents a trip hazard?" The answer is yes, quite simply. the act applies to any common parts (including communal areas of leasehold flats which you do not own a lease for) in which you have an interest. So, your tenants using a garden path to access their property must be kept in a good state of repair.

So, what does the act apply to? HMOs, check. Other residential lettings where the tenancy agreement is fewer than 7 years, check. Non-housing Act tenancies? Possibly, but not always. So, where a property is let to an employee and forms part of their remuneration (ie, if they contribute to the cost via a deduction from their wages, for example) then the act does apply, regardless of whether you include a clause in the agreement that says otherwise. For the avoidance of doubt, the employer will be considered the landlord, and this would be the case in the event of company lets and other non-housing act tenancies.

The act also applies to periodic and secure tenancies. For tenancies created before today, you'll have 12 months to comply with the legislation (deadline: 20th March 2020). 

It is expected that the local authorities will be relying on the Housing Health and Safety Rating System (developed for ensuring compliance with Housing Act 2004) to decide whether the landlord is in breach of the act. You can find this guidance here: https://www.gov.uk/government/publications/housing-health-and-safety-rating-system-guidance-for-landlords-and-property-related-professionals

Harry Albert Lettings & Estates have been providing free Housing Health and Safety Reviews to landlords with properties in Leicester as part of our management services ensuring compliance.

Your property will be considered to be in disrepair (and in breach of the act) if there are defects in the following areas:

• General condition of the property and the structure
• Damp or mould (not caused by the tenant)
• Living space and whether the room is suitable for the number of occupants (eg. letting a bed sit to a family of 5 would be a breach)
• Adequate natural lighting
• Ventilation
• Supply of water, sanitation and drainage, and;
• Adequate food preparation facilities (kitchen units, mains supply for hob or cooker, etc).

Where a landlord is found to be in breach, a claim may be brought before the court where a judge may order specific performance (an order forcing you to carry out repairs, not doing so is a criminal offence; contempt of court) and are likely to also award damages to be paid to the tenant (not doing so will be contempt of court).

You can read the act here:

https://www.legislation.gov.uk/ukpga/2018/34/contents/enacted