Comment

Fitness For Human Habitation Act places new obligations on private and social landlords

Friday, February 15, 2019 - By David Smith, Partner at Anthony Gold Solicitors

Just before Christmas, on 20 December 2018, the Homes (Fitness for Human Habitation) Bill received its Royal Assent becoming the Homes (Fitness for Human Habitation) Act 2018 (‘FFHH’ for short) (read here). This Act makes changes to the Landlord and Tenant Act 1985 to require that all landlords ensure that residential properties are put and kept in a condition fit for human habitation both before they are let and during a tenancy. This will apply to all social and private sector tenancies in England only.

Application

The Act comes into force three months after it has been passed, that is on 20 March 2019. However, it will only apply to tenancies made after that date, so any tenancy entered into before 20 March (i.e. signed by both parties and executed) will not be covered by the legislation initially even if the actual occupation begins after 20 March.

Any tenancy that is newly granted, is renewed, or comes into existence as a periodic from a fixed term after 20 March will be covered by the legislation immediately. Tenancies which were periodic before 20 March 2019 will not be covered by the new provisions until 20 March 2020 so they effectively have 12 months grace.

Tenancies that are continuing as a periodic tenancy from a fixed term tenancy by way of contract (so not arising as statutory periodic tenancies) are probably not covered as they will not have come into existence on the expiry of a fixed terms but by way of a continuation of the fixed term.

The legislation will not affect tenancies which are on longer fixed terms starting before 20 March 2018 and carrying on for an extended period (such as 18 or 24 months) until those tenancies are renewed or become periodic.

FFHH is not the HHSRS

Contrary to careless scaremongering by some private landlord advisors and pressure groups the FFHH is not the HHSRS for tenants. The standard of fitness is to be assessed by the court using the 29 hazard profiles provided for by the HHSRS but not in the same way or to the same standard as the HHSRS.

The HHSRS is a means of assessing notional risk in a property and improving it. The FFHH is a means of assessing fitness for a specific occupier. So FFHH is not assessed by considering whether there are category 1 or 2 hazards in a property (as the HHSRS is) and FFHH is assessed based on the person actually occupying the property (as opposed to HHSRS which is based on notional occupiers from high risk groups).

That is not to say that an HHSRS assessment for a property will not also be relevant to its fitness. Clearly, a property with a large number of serious HHSRS hazards is unlikely to be fit. However, a property which has HHSRS hazards which are specific to the risk groups used for an HHSRS assessment may in fact be fit for the specific occupier in the property if they do not fall into one of those risk groups.

Exemptions

There are a few exemptions from the legislation. Tenancies that are for more than seven years are not covered by FFHH and are exempt from s11 repairing obligations as well. However, this cannot be cheated and a tenancy for seven years with a break clause at two years will be treated as a two year tenancy unless the break clause is tenant only.

Obligations

It is likely that the case law already applying to section 11 disrepair will also apply here and so a landlord will not be liable for fitness unless they have been put on notice of the lack of fitness. However, that cannot be guaranteed and so landlords should make sure that they are inspecting regularly and are taking reasonable steps to be aware of fitness issues.

Landlords are not required to fix or resolve anything which requires superior landlord consent where the superior landlord is not giving that consent despite being asked. However, this does mean that superior landlord consent will need to be sought.

Breaches

As with disrepair now, where a fitness standard is not maintained the tenant will be able to seek damages and will be able to demand that the property is made fit.

Effects

For many private landlords this should not be a huge concern. Most private residential property is fit for habitation and if it is not it probably should be! There will be significant effects across the social sector which does have some very specific problems with fitness which they will need to resolve.

If you have any questions and would like legal advice, please contact David Smith who is a Partner in the Housing team at Anthony Gold. His email is David.Smith@anthonygold.co.uk.

Anthony Gold Solicitors will be holding a Housing Law Update seminar covering the new FFHH standard on 19 March 2019, and you can find further details here.

Please note that the views and opinions expressed in these blogs are those of the author and do not necessarily represent the views of London Property Licensing. These blogs are designed to stimulate discussion and debate within the property industry. This article does not represent legal advice and should not be treated as such.

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