Homes (Fitness) Act Allows Tenants to Sue Landlords over Property Condition

From 20th March 2019, tenants in England will have new powers to fight unfit housing — including the ability to sue landlords for not carrying out repair work.

The Bill was originally championed by Karen Buck MP, and was given much attention after the fire at Grenfell Tower.

What does the Homes (Fitness) Act mean for landlords and tenants?

‘Fitness’ just means the standard of the property in the context of it being a person’s primary home.

With this in mind, the Homes (Fitness For Human Habitation) Act (2018) does three main things:

  • Revives old protections for tenants regarding fitness of property during the tenancy
  • Adds new protections
  • Gives tenants new means to compel landlords to perform work (court action)
Karen Buck MP, official parliamentary portrait
Karen Buck MP, who brought the Private Members Bill.

The first changes are due to come into force for new tenancies on 20th March 2019.

One year later, on 20th March 2020, the new rules will then apply to all normal rental tenancies under 7 years length.

 

What are the old protections and why are they coming back?

The Landlord and Tenant Act (1985) describes:

  1. A condition that the house is fit for human habitation at the commencement of the tenancy
  2. An undertaking that the house will be kept by the landlord fit for human habitation during the tenancy

So what does ‘fit for human habitation mean’ here? The Act demands ‘regard be had’ to:

  • repair
  • stability
  • freedom from damp
  • internal arrangement
  • natural lighting
  • ventilation
  • water supply
  • drainage and sanitary conveniences
  • facilities for preparation and cooking of food and for the disposal of waste water

But these protections were only given to tenancies whose rent was less than £52 (or £80 in London). This of course means that today, these demands apply to no new tenancies priced at market rates.

The new Act applies the listed considerations to tenancies in England, without the old price exemptions.

This means that, after the Act is fully implemented, it will apply to all new tenancies with terms shorter than 7 years.

What are the new protections?

In addition to the above, the new Act also adds the hazards listed in the Housing Act (2004) as factors to be considered when assessing whether a property is fit for human habitation.

There are 29 of these, including mould, safety against intruders and noise. Click “Full List” to expand.

  • damp and mould growth
  • excess cold
  • excess heat

Read more

What makes a property fit or unfit?

In assessing whether a property is fit or not, what matters is whether it is ‘reasonably suitable for occupation in that condition’ with regard to the original nine protections and the Housing Act (2004) hazards.

The Housing Health and Safety Rating System breaks the Housing Act (2004) hazards down into categories of seriousness. In the past, higher-categories hazards have warranted more urgent repairs and extreme penalties.

But under the new rules, whether the hazards are what is termed ‘Category 1’ or ‘Category 2’ is not thought to matter. All that matters is whether the property is reasonably fit by reference to all hazards and the original 9 considerations.

The list of hazards could be added to at any point to include new considerations. This is quite likely to happen as the Government continues to reform the private rented sector (PRS).

Who decides what is ‘unfit’? Is the council still involved? Can my tenant take me to court?

Crucially, the new Act means that tenants will be able to take landlords to court if their property is not fit for habitation.

Until now, tenants have had to rely on Local Authorities (councils) to enforce repairs to unfit housing, but councils have not had the resources needed to enforce the standards effectively.

With the new Act, tenants won’t need to rely on Local Authorities. They can solicit expert evidence from, e.g. surveyors – or even provide their own evidence – and use it to argue that landlords have broken the covenant implied in the newly amended Act.

The court will then make a ruling which the landlord and tenant will have to abide by.

Exceptions

There are some familiar looking exceptions to the work landlords can be expected to perform in order to address fitness of dwelling:

  • if the problem has been caused by the tenants failing to act in a ‘tenant-like manner’, e.g. deliberate damage to the property.
  • ‘Inevitable events’, e.g. damage caused by fire, storm, flood, etc.
  • Repairs of items that the tenant can remove, e.g. their own furniture in an unfurnished property.
  • Works which would breach the landlord’s other obligations, e.g. planning permission.
  • Work that requires third-party consent, e.g. from the freeholder.

When does this apply? What is the schedule?

The commencement date of the Act is 20th March 2019.  On this date, the above changes will apply to new tenancies, including newly created statutory periodic tenancies.

Then, a year later on 20th March 2020, it will apply to all existing tenancies.

What should landlords do about the Homes (Fitness) Act?

If your properties are already fit for human habitation, then you don’t necessarily need to take any immediate actions.

The Act only deems homes as unfit if they are “far defective” in one (or more) of the listed areas of consideration, and the new rules will only apply to new tenancies (or new periodic tenancies), meaning you will have plenty of time to assess any existing tenancies before 20th March 2020.

The majority of PRS properties are fit for occupation, and most landlords are diligent and responsive to their tenants’ complaints and repair requests.

Shelter have, however, claimed that the number of properties with serious ‘Category 1’ hazards increased over the last parliament, suggesting that the commencement of this Act is a good opportunity to re-assess the condition of all your properties.

This is sensible because the criteria have now changed, and it is always good landlord practice to survey properties as often as possible.

Remember that tenants will now be able to sue you directly, so maintaining good communication and a good relationship will be more important than ever.

How many tenants will actually use their new powers?

That remains to be seen, but our own view is that the numbers will be very low. This is for several reasons.

Firstly, as we’ve said, most rental property is in a good state and where it isn’t, most landlords are happy to make repairs when they are reported.

Secondly, most tenants will not hear about this new legislation. It is a sad thing, but many tenants do not know about their existing rights. The fact of the matter is that the majority of tenants will not realise they are now able to pursue repairs without relying on underfunded councils.

Finally, many tenants will be very reluctant to begin the odyssey of paperwork, court fees and bad will that comes with suing their landlord. Unlike when complaining to the council, tenants will have no protection from retaliatory evictions, which will put them off suing.

There is also very little guidance for them in terms of what evidence they should submit, and what cases are most likely to succeed. Therefore, we expect cases of tenants suing landlords to be very low for the first few months at least.

29 Replies to “Homes (Fitness) Act Allows Tenants to Sue Landlords over Property Condition”

  1. Personally I take pride in my tenanted properties and keep them in tip-top condition irrespective of cost. However, i am aware of many private landlords who do not. So the legislation will quite rightly hit the worst offenders. However, in the longer term I feel the legislation can only lead to the general increase in rentals; good for the landlord but alas tenants will inevitably pick the bill!

    1. This is informative. We will seek to even become better and better. Our rooms are in very excellent conditions but knowing new changes in the law is essential for pur business,
      Cheers

  2. It DOES matter whether the ‘defect’ is a Category One or Two Hazard, as the Act says that it is for only such defects that the FFHH can be used.
    A cat 2 hazard ( defined as a less serious hazard ) does NOT in my view, make a property UNFIT for Human Habitation.
    Support for the Bill was garnered from All landlord organisations on the ‘ reasonable and justifiable proposition ‘ that no properties UNFIT for habitation, should be rented. When the devil in the detail of the Act was published, its any minor patch of damp, condensation etc that could qualify as a Cat 2 hazard.
    Landlords watch out for this being used by Criminal Tenants assisted by Legal-Aid solicitors as a ‘Retaliatory Defence’ to Possession proceedings.

    1. good point, damp is often down to tenants drying clothes and an enterprising crim could certainly additionally damage a roof or ceiling. councils in my experience are a bit left wing and bias is towards the tenant. Every year there is more and more legislation with draconian fines against landlords. it must be very hard for a new landlord buying the first rental property to be up to speed

  3. There is scope for a dispute about the cause of mould. For example, if a tenant leaves bedroom, bathroom or kitchen windows closed and the ceiling goes mouldy due to damp air, who is at fault? This has happened in a small bedroom – the tenant blamed a leaky roof whereas I knew the problem was poor ventilation. After repapering and painting the ceiling, the problem has not returned.

  4. As an overseas landlord I cannot praise Open Rent enough. I loathe estate agents these guys are fair and that is their value.

  5. The biggest problem me as a landlord is damp and mould, which I personally note in the tenancy conditions, that the property starts with neither.
    In a lot of cases before the tenant vacates the property has developed both, due to the tenant not adequately allowing the property enough ventilation, by saving heat and to reduce their electric bill.
    They will…..
    * Temporarily Blocking ventilation grills. (to save a drop in temperature).
    * Closing the vents in the double glazed windows. (to save a drop in temperature)
    * Turning off the power to bathroom extractor. (to reduce their electric bill).
    * Turn off the cooker hood extractor. (to reduce their electric bill)
    * Hang their wet washing around the flat, instead of using the tumble dryer and not hanging it out on the washing lines in the garden, when the weather permits. They find it easier and quicker to hang it on a foldup drying horse by a radiator, almost daily. (one of the biggest contributing factors to mould and condensation)
    All of the above are out of the Landlords control and can easily be denied by the tenant, who would usually have an underlying grudge against their profiteering landlord.

    1. Good idea. I shall add statements that there is no damp or mould to my tenancies.
      I have previously suffered all the damp creating issues listed.
      By the way I now fit passive vents in all bedrooms and bathrooms. They work well.
      Here is a link to just one of the companies that sell them. https://www.permagard.co.uk/ventilation-condensation-control/passive-vents?msclkid=86b9436b09c61e4c237a1f2c314b643c&utm_source=bing&utm_medium=cpc&utm_campaign=UK%20%7C%20Condensation%20Control&utm_term=%2Bpassive%20%2Bvapour%20%2Bvent&utm_content=Passive%20Vents

    2. I totally agree. The law should be changed to “the landlord should supply adequate means of ventilation”, and not be responsible for mould unless it is due to things outside the tenants ability to solve, Eg. Due to leaks.
      In addition personal hygiene and domestic hygiene, should have a similar clause, because you can’t make tenants hygienic, you can only supply the means for them to be hygienic.
      If they create dirty surroundings and get rodents or insect infestations then they should be responsible for clearing the mess.
      The landlord should only be responsible for giving them a clean home and the amenaties to keep it clean.

    3. All I can say to this point is that I totally agree. I have a lovely little bedsit by the sea but all the flats are prone to condensation despite damp proofing. Every one of the above have applied at singe stage. I have now added economy 7 and storage heater to other heaters but the tenants lifestyle is the no.1 factor. I’m quite afraid of how a tenant will fail to ventilated my place, especially during winter. 🙁

  6. Like a lot of these so called “reforms” the dodgy landlords it’s supposed to affect will ignore it, the decent ones who do their best to comply with best practice will fall victim to rogue tenants who will abuse it as an excuse to stop paying their rent with spurious excuses such as the phone signal is poor !! or simply lie knowing that most landlords don’t have the infrastructure or knowhow to keep a proper audit trail of the tenant/landlord exchanges. Even if they do the legal costs to landlords defending such frivolous and vexatious claims will not make it worth while trying to stay in business. The legal costs to the tenants…..0, nothing, nada, because they will be able to get LEGAL AID, seriously, check it out. Just watch the sudden explosion of ambulance chasing lawyers suddenly appear once this thing gets started.

  7. I have always kept my properties well maintained and in good order. I bend over backwards to make sure that issues are corrected in a timely manner. However one of my tenants made continuous complaints about multiple stupid things over the course of 18 months and finally called in Environmental Health to try to force me to do exactly what they wanted. When the officer inspected, he could find nothing wrong. He said he frequently got some tenants that made spurious complaints against landlords. This law will open the door to good landlords being sued by tenants over minor issues like settlement cracks, scuff marks on walls made when they moved in etc. I pity the landlord that houses that kind of tenant because they’ll be first in the firing line for this behaviour.

  8. What next? Now all good landlords are lumpted into the bad landlord category due to the Councils mishaps and crook landlords. Why not just put the tax payers funds into targeting frauds.

  9. My experience of rules/regulations/ legislations from government/ Parlament/ commons is what they say can not be trusted .
    They are pathological liars .Which has broken down the fabric of society.

  10. I agree entirely with Michael, David & Guy. I also consider myself a responsible landlady and feel that these new legislations, although set up for the right reasons, are very weighted towards the tenant but the accommodation provider does not get the same sort of support. Rogue landlords will still exist and will continue to let unsuitable properties irrespective of any sort of law – that is the nature of them. Anyone letting property will know, it is a two way street, there are ‘rogues’ on both sides. I have been lucky with tenants so far, but each new let is a gamble which I wonder if it is worth taking.

  11. It’s all good putting lots of legislations & laws in place for landlords but when is the government going to do something about tenants who do not pay their rent & leaving properties in a bad state, tenants know they can get away with things in this country, if they don’t pay their rent for months, landlords have to go through the court costing them hundreds of pounds plus the time it takes to evict the tenants so giving them extra time to stay in the property without paying & in somecases the council actually advise tenants to stay put until they are evicted. I understand some landlords really don’t maintain their property, but those who do will often find tenants who decide not to pay the rent but also create more mess such as damp & mould as one person mention, tenants don’t ventilate the house or keep it clean. Everything seems to be in tenants favour, it’s about time landlords were given help too, as so many landlords have been left in thousands of pounds worth of debt.

  12. I have always maintained my properties In tip top comdition and I expect to Rent them out in accordance with my terms and conditions without such law makers disturbing my rights
    These new laws should be made for councils and their own tenants As they provide free legal assistance to their poor tenants
    For example mould and condensation is always 99 p cent in my case a tenants fault for shutting bathroom ventilation blocking vents not airing out clothes not using tumble dryers provided by me but blocking radiators with wet clothes and ignoring the terms of the tenancy
    One tenant may live well without condensation and mould but another will not ventilate or look after the property inviting mould and condensation
    Would this government make note that such laws against the private landlords who maintain their properties well built under council control and building laws passing through planning permissions and building regulations eg condensation and mould is a bad living habit goes against the private good landlord as well
    The private landlord must be protected with legal aid to match the frivolous claims of bad tenants if he thinks he is not at fault to give them both a good chance at law and defence as a private landlord too can be poor in defending and using a lawyer

    Mostly tenants do not wipe sealants after a bath and allow black mould to grow on it can the lawmakers Please allow the landlord to have free legal aid as well to be fair to both parties
    Time is very valuable for good landlords where a bad tenant with lots of time and free legal aid at his disposal can waste landlords previous time and threaten the landlord whilst he peruses vexatios frivolous and false claims
    It’s should be up to a private tenant to Persue or end a private tenancy using the terms and conditions he entered into
    A minimim tenancy is only six months so it’s not long to bear for a private landlord or a private tenant
    Council tenants are spoilt in my opinion with legal aid and money which they do not earn so why lash out on us good private landlords and encourage disputes between the landlord And tenants
    We always carry out an independent professional inventory but cannot always tell what sort of tenant we will end up with
    The council passed planning permissions and buildings regulations as per government laws in the first place for the protection of people

  13. I agree that their are some unscrupulous bad landlords out their but the majority do adhere to keeping their properties to a high reasonable standard. It makes me angry that every new legislation that the government propose is geared towards the tenants and their rights !! What about the landlords rights !! We as landlords have no comeback when it is the fault of the tenant that causes damp, mould in the property due to bad ventilation or the bad tenants who trash the property and leave the landlord with a cost of thousands to put right.

  14. I live in a council flat and i moved in 2001 and never had an epc rating. Nothing exists online too. Is this something i should have or is the council liable to do one, and when?

  15. I plan to sell my rented property. Too many laws against private landlords and too many bad tenants. These days I don’t give a flying **** for the homeless. Many of them don’t deserve a home in the first place.

    1. Everyone deserves a home! And a decent home at that. The vast majority of landlords provide that for their tenants – I hope that this new Act will help clear the industry of the small minority of landlords giving the majority a bad name.

    2. I fully understand your frustration and sympathise with your situation having been a private Landlord myself for some 27 years now.

  16. Landlords defence? maybe a written signed statement from an outgoing tennant regarding any faults they had during their term (as in a reference) ~ in particular damp; maybe, legally, this would have to be an “affidavit” witnessed at the Local Court~ (I had one made once, if there was a cost it was minimal) maybe just witness signatures of both parties. A Good Landlord will probably have know rejection to the request and collect them over time like a character witness statement; the required end of term statement could be part of the tennency agreement. I agree on the point that we should be wary of being tarred with the same brush.

  17. since february 2018 i have had water coming through my kitchen ceiling i live on ground floor with one flat above me. my landlord hyde have still not resolved problem keep telling me it is an emergency here i am 21/03/2019 with issues how do i get this resolved. I THINK THEY ARE HOPING I DIE BEFORE REPAIRING IT I PAY FULL RENT AM 70 YEARS OLD AND DISABLED WHAT CAN I DO.

  18. My place is not fit to live in I have severe asthma and it’s black mould everywhere I’ve even had a reporter out here it’s so bad landlord does not care at all
    I am looking for a 2 bed property or 1 bed with gas central heating and bath I’m disabled so get full housing benefit and can top up rent is paid direct to landlord in Weston super mare!!

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