Fitness for Human Habitation - Legal update

EXPERT WITNESS REVIEW

Introduction

As a consultancy we have watched with interest as the Homes (Fitness for Human Habitation) Act 2018 has been introduced and have been exploring what it will mean in practical terms.

The Homes (Fitness for Human Habitation) Act 2018 amends the Landlord & Tenant Act 1985, to introduce a new section 9A, 9B & 9C and amends section 10 for England.

Essentially section 9B provides that section 9A, the implied terms apply to most tenancy types by 20 March 2020.

What are the criteria for Fitness for Human Habitation?

Section 9A introduces the implied standards of fitness for human habitation into tenancies. To determine Fitness for Human Habitation, regard must be had to its condition in respect of ten factors (Landlord & Tenant Act 1985 section 10) which includes:

Repair: the building has been neglected and is in a bad condition
Stability: the building is unstable, e.g. structural problems including subsidence or potential collapse
Freedom from damp: there’s a serious problem with damp, e.g. rising, penetrating or condensation caused by disrepair
Internal arrangement: it has an unsafe layout, e.g. means of escape problems, room within a room,
Natural lighting: there’s not enough natural light, e.g. internal room without windows
Ventilation: there’s not enough ventilation, e.g. limited background (trickle) vents or extractor fans
Water supply: there is a problem with the supply of hot and cold water. e.g. no hot water
Drainage and sanitary conveniences: there are problems with the drainage or the lavatories
Facilities for preparation and cooking of food and for the disposal of waste water: it’s difficult to prepare and cook food or wash up.
..or any of the 29 hazards set out in the Housing Health and Safety (England) Regulations 2005

Dwellings will be unfit for human habitation if, and only if, it is so far defective in one or more of these matters that it is not reasonably suitable for occupation in that condition, i.e. 'whether the dwelling as a whole was unfit for habitation' - Bole and another v Huntsbuild Ltd [2009].

Ultimately it is for the courts to decide whether the dwelling is fit for human habitation. A Housing Health and Safety Rating System (HHSRS) assessment is not essential. However, a landlord might choose to carry out an assessment if they want to establish whether a serious health and safety hazard is present.

Care needs to be taken as Fitness for Human Habitation relates to the specific occupant(s), whereas the HHSRS is based on notional occupiers being in the highest risk groups.
The list of 29 hazards (as listed in the Housing Health and Safety Rating System (England) Regulations 2005) are set out below in categories:

Physiological Requirements
1. Damp and mould growth
2. Excess cold
3. Excess heat
4. Asbestos and manufactured mineral fibres
5. Biocides
6. Carbon monoxide and fuel combustion products
7. Lead
8. Radiation
9. Uncombusted fuel gas
10. Volatile organic compounds
Psychological Requirements
11. Crowding and space
12. Entry by intruders
13. Lighting (including natural)
14. Noise

Protection Against Infection
15. Domestic hygiene, pests and refuse
16. Food safety
17. Personal hygiene, sanitation and drainage
18. Water supply for domestic purposes
Protection Against Accidents
19. Falls associated with baths etc.
20. Falls on the level
21. Falls associated with stairs and steps
22. Falls between levels
23. Electrical hazards
24. Fire
25. Hot surfaces and materials
26. Collision and entrapment
27. Explosions
28. Position and operability of amenities
29. Structural collapse and falling elements

Hazard means any risk of harm to the health or safety of an actual occupier of a dwelling or HMO [house in multiple occupation] which arises from a deficiency in the dwelling or HMO or in any building or land in the vicinity (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise).

Has Fitness for Human Habitation been tested?

Yes – cases have considered what it means, several are set out below:

Dangerous Sash Window with cords breaking - Summers c Salford Corp [1943].
Plaster falling from a ceiling. The ceilings were in a dangerous condition, and therefore that the rooms were not, speaking in a broad sense, fit for human habitation - Walter v Hobbs [1889].
The complete collapse of a ceiling. Landlord wasn’t liable due to receiving no notice. Fisher v Walters [1926].
Accommodation in which a sanitary convenience was defective and serious dampness had accrued from defective guttering - Morgan v Liverpool Corporation [1927].
The landlord's liability for condensation dampness was established where the tenancy agreement provided that the landlord would keep the dwelling 'fit to live in'. [Johnson v Sheffield CC 1994].
The High Court recently heard an appeal concerning an express term on 'fit for habitation' [Baillie v Savage 2018]. The risk of collapse of a further part of a garden retaining wall adjacent to the house made the property unfit for habitation.

Other examples of what may amount to unfitness, include:

defective foundations;
a lift that broke down with 'monotonous regularity (subject to the degree of inconvenience)';
no safe means of access or escape from a dwelling;
hazards to the common parts;
interior doors or partition walls that did not meet building regulation fire safety requirements at the time of construction; and
mould and damp in living rooms and bedrooms.

As the new Act embeds, more case law and decisions will ultimately shape and clarify how far Fitness for Human Habitation reaches.

Please get in touch if you have a requirement and want to discuss further or fill out the form below.

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