How will the Homes (Fitness for Human Habitation) Act 2018 affect you?

The Town and Country Planning (Use Classes) Order 1987 has with some amendments been a settled part of planning law and provided a predictable basis upon which land owners, developers, tenants and planning authorities have regulated the basis of changes of use of property for many decades. As part of the Government’s “Project Speed” a new set of amendments to the Use Classes Order are to take effect from 1 September 2020. These changes go beyond mere tinkering as has occurred on previous occasions and represent a major shift in approach by Central Government towards land use.

The Homes (Fitness for Human Habitation) Act 2018 (‘the Act’) came into force on 20 March 2019. On 20 March 2020 the Act was extended to apply to existing tenancies in England.

The law was introduced to ensure rented homes are safe and secure and gives the tenant the right to take their landlord to court if their homes are not in that condition.

Initially it was only tenants who had signed their tenancy agreements on or after 20 March 2019 who were able to exercise their rights under the Act, now all tenants have this right. The Act requires that landlords must ensure their property is fit for human habitation at the start of the tenancy and then ensure that they maintain this standard throughout the tenancy (and any subsequent periodic tenancy that ensues).

The key question when determining unfitness for human habitation is whether a property is 'not reasonably suitable for occupation in that condition' because of one or more of the following factors:

• Repairs
• Damp
• Internal arrangement
• Natural lighting
• Ventilation
• Water supply
• Drainage and sanitary conditions
• Stability
• Facilities for preparation and cooking of food and for the disposal of waste water
• Any ‘prescribed hazard’ - this is defined as any matter or circumstance amounting to a category 1 or 2 hazard under the Housing Health and Safety Rating System. 

Establishing that a dwelling is unfit for human habitation is a question of fact in each case. The mere presence of one or more of the above factors in a property is not enough to establish that a property is unfit.

A dwelling shall be regarded as unfit for human habitation only if ‘it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition' as set out in the Act. 

The potential impact on landlords could be significant. Previously, landlords have not been required to replace or upgrade the property or services in the property unless they were in disrepair. However, the new rules require that a landlord ensure their property is fit for human habitation at the start of and throughout the tenancy.

The key question will be whether the property is suitable for occupation having regard to the defects as a whole, the Court is unlikely to find that a property with minor defects is unfit for human habitation. It is important to note that a landlord will not be required to remedy defects that arise from the act or default of a tenant and that a tenant will need to prove that the landlord is responsible for carrying out the works required.

As in disrepair cases, tenants will be able to ask the courts to order requiring a landlord to carry out works and also seek damages for breach of contract with compensation assessed in the way disrepair claims are currently.