In the latest newsletter from the Housing team at 42 Bedford Row, Mathew McDermott looks at the Supreme Court’s judgment dealing with the approach to affordability under Part VII Housing Act 1996 Read more >
Sections 8 to 10 of the Landlord and Tenant Act 1985 used to be one of the sleepier backwaters of landlord and tenant legislation. Although section 8 implied an obligation into any tenancy of a house that it was fit for human habitation, the statutory covenant only applied where the rent payable was unfeasibly low. In the event, it was a ‘…completely dead letter’ (Issa v Hackney L.B.C.  1 WLR 956, per Chadwick L.J.). But, things have changed.
Today, 20 March 2019, the Homes (Fitness for Human Habitation) Act 2018 comes into force; introducing new sections 9A, 9B and 9C into the 1985 Act. In effect, these sections imply an obligation of fitness for human habitation into most tenancies of dwellings in England (not Wales; which remains served by section 8 (as amended)). This is a new duty imposed on a landlord, complimentary to section 11 of the 1985 Act, for which breach will entitle a tenant to make a claim for specific performance and/or damages.
The new rules apply to all new periodic or fixed term tenancies (for a term of less than 7 years) granted on or after 20 March 2019 (s.9B(1)). For the avoidance of doubt, this includes any periodic or secure tenancy which comes into existence after 20 March 2019 upon the expiry of a fixed term (s.9B(5): eg. an assured shorthold fixed term which turns into an assured shorthold statutory periodic tenancy; or, an introductory tenancy which becomes a secure tenancy).
Existing periodic and secure tenancies do not escape. If still in existence in one year’s time (on 20 March 2020) they too attract the operation of the rules (s.9B(4)). Accordingly, only non-secure fixed term tenancies, which are not renewed, avoid the Act up to their expiry.
Where the new duty applies (there are some exceptions in s.9A(2),(3)), the relevant dwelling must be fit for human habitation at all times. Although where the dwelling is unfit internally (rather than unfit because of some external defect), the obligation only arises once the landlord has notice of the problem (just like section 11 liability). Contracting out of the obligation is prohibited (s.9A(4)).
Like section 11 of the 1985 Act, where the dwelling forms part only of a building (eg. a flat in a block; or a room in an HMO), the duty extends to the common parts of the building.
‘Unfitness for human habitation’ itself will turn on whether the dwelling is ‘not reasonably suitable for occupation’ and must be assessed by the Court by reference to the amended version of section 10 of the 1985 Act. This will involve consideration of the factors previously set out in section 10, as well as (by amendment) any of the prescribed hazards defined under the Housing Act 2004 (ie. both Category 1 and Category 2 hazards).
Government guidance has now been issued for landlords, tenants and local authorities which may be found at:
Whether this will add much to the existing profile of disrepair disputes between landlords and tenants remains to be seen; but, undoubtedly, it will be another point of focus for lawyers who are acting for tenants.
42 Bedford Row
20 March 2019