The Leasehold Reform (Ground Rent) Bill received Royal Assent on 8 February 2022 meaning it is now an Act of Parliament (law), its provisions however do not come into force until 30 June. The Act applies to residential long leases granted for a premium and entered from and including the day the law comes into force. The Ground Rent band applies to new residential leases in England and Wales not existing leases. The Act does also apply to lease extensions of existing low lease flats.

This new Act does not change the issue of marriage value being payable on low leases. (Under 80 years). A bill on broader leasehold reforms is expected in the last session of this Parliament which is intended to deal with Reform of the valuation aspects of lease extensions & enfranchisement. However, the exact details of what this reform will entail is not currently clear, if the reforms follow the Law Commission’s recommendations, then it should provide for the following changes.

-No more marriage value

-A 990-year lease extensions right at nil rent

-An industry wide commission on Commonhold – a ‘Commonhold Council’ charged with preparing the way to make this work

The next phase of the reforms is at least 2+ years off becoming law. These are our views on the proposed next stage reforms.

No more marriage value

The proposal to remove ‘marriage value’, which often comprises up to 1/3 or more of the Premium element in many mid-lease length cases, is good news. This will not be popular with freeholders. This change will almost certainly be subject to legal challenge from Freeholders under human rights legislation.

Removing Marriage Value on Freehold purchases or Lease Extensions does not necessarily mean the cost of extending or buy your building’s freehold will become cheaper. Valuation is a complex area, and we would guess that the compensation element for Loss of Reversion could be increased to offset the proposed loss of marriage value.

990-year lease extensions at a nil rent

This is not a surprise – the plus 90-year lease extension has just been upgraded, by another 900 years and so won’t need doing again but 90 is usually sufficient for current owners’ lifetimes.

The nil rent element already exists for statutory extensions as things stand.

What does that mean?

If you are extending your lease or buying your freehold at the moment, no change. The proposed 2nd phase more radical reforms are likely to be challenged by freeholders.

Leaseholders (in most cases) need to act now as the mere ‘prospect’ of reform is not good enough. The longer you leave it to extend or to buy your buildings freehold interest the shorter the unexpired term of the lease becomes. There is still no guarantee that the Premium payable under the proposed new Law will be less. It might be worth while waiting for this 2nd phase legislation to come in if your lease has less than 60 years unexpired.

By waiting you are betting that the calculation on the future valuation model will be less on worst input variables (i.e. lower lease term and high property values etc), in most cases delaying the decision to enfranchise will cost leaseholders thousands more.

Fixed penalty notices are all over the news at the moment as reports emerge that the Metropolitan Police expect to impose penalties on several individuals who attended parties at 10 Downing Street during lockdown. The Metropolitan Police might even give a fine to the Prime Minister, Boris Johnson,  if they conclude that he personally breached the law by participating in a prohibited ‘gathering’.

 

Fixed Penalty Notices

Fixed Penalty Notices (FPNs) are meant to be a quick and easy form of punishment, and this was probably why they were selected as the primary means of enforcing the Covid-19 restrictions. To give one example of the many powers to serve FPN under Covid-19 rules, regulation 9 of the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 allows police and other authorised officers to give a FPN imposing a penalty between £100 and £6,400 for a breach of those regulations. Although the lockdown restriction no longer apply, FPNs for past breaches can still be imposed.

FPNs have existed for a long time now. There are forms of fixed penalty notice which apply to different aspects of life, ranging from motoring offences and disorderly conduct to school truancy. FPNs tend to be given for minor offences, and generally are for relatively small amounts of money.

FPNs are a form of civil penalty, but not all civil penalties are fixed, and they are certainly not restricted to minor offences.

 

Civil Penalties in the Property Sector

There are now various civil sanctions which apply in the property sector. Landlords who rent property to individuals who do not have a ‘right to rent’ under the Immigration Act 2014 can face civil penalties of up to £3,000 from the Home Office. The Consumer Rights Act 2015 allows penalties of up to £5,000 to be imposed on agents who fail to comply with fee transparency rules. The Tenant Fees Act 2019 contains powers for councils to impose penalties of up to £5,000 for first breaches, and up to £30,000 for subsequent offences. The Housing and Planning Act 2016 gave local housing authorities the power to impose penalties of up to £30,000 for various housing offences, and most recently the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 also contains power for financial penalties of up to £30,000 (without creating any criminal offence).

 

Appeals

There are slightly different rules which apply to the different types of penalty. All the penalties I deal with in my professional practice have some can be appealed to a civil court or tribunal. Most appeals are made to the First-tier Tribunal, either in the Property Chamber or the General Regulatory Chamber, but ‘right to rent’ penalties can be appealed to the County Court.

FPNs work differently. A penalty under the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 cannot be formally appealed. A person who receives an FPN has the option to pay the penalty within 28 days, and if they do so, they cannot be prosecuted for the same offence. If they do not pay, they can face prosecution in the criminal courts.

It is possible to write the police or local authority and ask for a penalty to be withdrawn, but this is not the same as a right of appeal to an independent court or tribunal.

 

Consequences of Paying

It is possible to pay a penalty without ever admitting guilt, or any formal finding of guilt. The police only need to ‘reasonably believe’ that someone has committed an offence to give an FPN under the Covid-19 regulations. Other types of FPN have an even lower threshold – under the Criminal Justice and Police Act 2001, an FPN may be given by “a constable who has reason to believe that a person aged 18 or over has committed a penalty offence”.

In R v Hamer [2010] EWCA Crim 2053 the Court of Appeal Criminal Division held that an FPN under the Criminal Justice and Police Act 2001 should not be regarded as a conviction that in paying the penalty the Defendant “was not admitting any offence, not admitting any criminality, and would not have any stain imputed to his character.”

Based on this analysis, it would appear that in the eyes of the law, someone given an FPN under the coronavirus regulations could pay the penalty and then later claim that they were innocent of any crime. Indeed, one Conservative party MP has already been making this point online, stating: “Fixed Penalty Notices are given out for prescribes minor breaches of law. They’re not fines, convictions or proof of guilt – all of which can only be handed out or determined by a court.” We might not all agree that breaches of covid restrictions were ‘minor’, but its true that an FPN is not the same as a criminal conviction, and it is not proof of guilt.

 

Consequences of Paying – Housing and Planning Act 2016 penalties

There is a striking contrast between such FPNs and ‘Financial Penalties as an alternative to prosecution’ under the Housing and Planning Act 2016. These financial penalties can only be imposed where the local authority is satisfied beyond reasonable doubt that a landlord or agent has committed a criminal offence. A landlord who believes they are innocent can appeal to the tribunal, and on appeal an independent panel (a judge and an experience property professional) will weigh up the evidence and make a decision about whether the local authority have proved that alleged offence was committed.

But what if the landlord decides not to appeal – are they admitting guilt by not doing so? Formally the answer has to be no, because there is no need to make an admission of guilt to pay one of these penalties.

The more difficult question appears to be – how much weight should be given to the local authorities’ conclusion that the landlord committed an offence? Local authorities are not very likely to accept that only a court can determine guilt, and I am sure that some officers would take the view that their decision should be treated as final unless overturned by a court or tribunal.

In various ways, both practical and legal, financial penalties which are not appealed are treated as findings of guilt:

1. Financial penalties are publicised by local authorities. This can be through press releases, on their websites or in London, on the Mayor’s Rogue Landlord Checker.
2. A landlord or agent who receives received two or more financial penalties in respect of a ‘banning order offence’ within a period of 12 months can be added to the Government’s database of rogue landlords and agents.
3. A financial penalty can affect the amount of a rent repayment order in the same way as a conviction under section 46 of the Housing and Planning Act 2016.
4. Local authorities might take account of these penalties when assessing whether or not a landlord is a fit and proper person.

So, a paying a financial penalty of this sort is not itself a formal admission of guilt, but it does involve giving up the opportunity to challenge a finding by a local housing authority that an offence was committed, and it does – whether rightly or wrongly – come with some stigma and potentially adverse publicity.

The sheer range of civil sanctions and penalty notices now available to enforcement bodies make this a complex area of law, and it is impossible to an accurate account of the full consequences of accepting a civil penalty or FPN in a short article like this – in particular, there are legal questions about when Housing and Planning Act financial penalties which will need to be resolved at some point, such as when they should be admissible as evidence. Landlords and agents need to think carefully about the effect of appealing or not appealing any penalties.

The long-awaited Building Safety Bill (the ‘Bill’) is expected to receive Royal Assent later this year, between April and July 2022.  It comes as a result of increasing concerns raised around fire safety following the Grenfell Tower fire and much confusion around the roles and responsibilities of those involved in the construction process. The Bill aims to make people safer in their homes; give residents and homeowners more rights, powers and protections and establish a more comprehensive building safety regime.

Whilst the Bill is expected to introduce a whole raft of changes, this blog will only focus on those provisions which increase the ‘rights of action’ available to those suffering from construction defects.

 

The Defective Premises Act 1972

Under section 1 of the Defective Premises Act 1972 (‘DPA’), homeowners (including leaseholders and landlords) may bring a claim in respect of defective work where that work renders the dwelling ‘unfit for habitation’. Currently, this only applies to construction (i.e. new builds), conversion of buildings (e.g. the conversion of offices into flats) or enlargements of a building, but does not extend to work undertaken on existing dwellings. Claimants are usually entitled to reinstatement costs (i.e cost of putting the defects right) and may also be entitled to damages for loss of enjoyment whilst the dwelling is uninhabitable.

Key amendments for building safety

The Building Safety Bill proposes two key amendments which should in theory expand existing rights under the DPA.

Firstly, the Bill proposes to extend the limitation period for a person to bring an action under section 1 of the DPA. Currently, a person has 6 years from the date of completion of the dwelling within which to bring an action. This is set to be extended to 15 years and will apply to claims brought after the Bill comes into force. This will more than double the period within which homeowners can bring a claim in court and is designed to afford them more protection.

The Bill also proposes to extend the limitation period retrospectively under section 1 of the DPA to 30 years. This means that claims which are currently deemed ‘out of time’ may now potentially be ‘revived’. Therefore, if the Act comes into force in April 2022, as is currently expected, the ‘cut-off date’ would be April 1992. For those claims only just falling within the time frame, the Bill is also going to provide for 1 year of grace to allow proceedings to be brought.

It is important to note that this retrospective application remains limited in two ways:

1. Any already determined claims cannot be re-opened. This means claims that have been settled or already struck out on limitation grounds will not be reviewed; and
2. The retroactive application will only apply to the extent that it does not infringe on the defendant’s (i.e the developer) human rights under the Human Rights Act 1998. Exactly how and when this defence will be raised remains to be seen.

Secondly, the Bill also widens the scope of the DPA by introducing a new Section 2A which expands the right to claim compensation for works undertaken on existing buildings that contain one or more dwellings to include refurbishment or rectification works. The limitation period for this would also be 30 years. Whilst this change would seemingly ‘plug the gap’ in protection for homeowners, it would only apply to work completed after the Bill comes into force (i.e it will not have retrospective application) and is therefore unlikely to spark any immediate increase in claims.

Section 38 The Building Act 1984

The Building Safety Bill intends to also bring the currently ‘dormant’ Section 38 of the Building Act 1984 into force. This will provide a right of action, independent of any claim under the DPA or for breach of contract, to anyone who suffers damage as a result of the breach of the Building Regulations. This applies to all buildings, not just dwellings, and will also be subject to a 15-year limitation period (with prospective application only).

The Bill is also set to amend the Building Act 1984 to enable claims for purely financial loss (e.g. the cost of rectification work or resulting loss in capital value) to be covered under section 38.

 

Potential gains for homeowners

At a glance, the changes proposed by the Bill give a significant boost to homeowners’ rights, in particular, the extension of the limitation period which would allow homeowners to challenge sub-standard construction work that may have only become apparent after the existing six-year limitation period had ended. Additional rights and protection are also afforded with the new Section 2A of the DPA and Section 38 of the Building Act 1984.

Potential issues for claimants

However, whilst these changes may increase the number of potential compensation claims which can be brought, claimants will still need to substantiate their claims. This may prove more difficult in terms of obtaining evidence, particularly concerning claims which were previously considered out of time, as documentation may now no longer be retained by developers. Claimants may also find obstacles in identifying potentially liable defendants who are still solvent or insured. If the developer has insufficient funds to compensate the claimant, claimants could be left having to bear their loss and homeowners may still have to meet the ultimate costs of repair via service charge provisions. The uncertain nature of litigation also remains, along with the cost and time involved in pursuing claims. Such obstacles may therefore continue to limit the number of claimants who can make use of these new rights.

 

Nina Brennan joined Anthony Gold as a trainee in September 2020. She is currently undertaking her second seat in the Housing Department.

On 2 February 2022, the government published a much-trailed White Paper called Levelling Up the United Kingdom.

While housing took up only a small part of the total document, there were still some interesting announcements.

While full of the familiar emphasis on homeownership, there is also an emphasis on housing standards, accepting that “too many households still live in housing below standards society should accept.” The White Paper points out that the impact of the Covid pandemic, where people were forced to stay in their homes for a long period, pushed housing standards to the fore.

Levelling Up Social Housing

There is an acceptance that there is a significant unmet need for social housing, that there has been an increase in the size of the private rented sector as the social rented sector has decreased, and that private sector tenants live with insecurity where they can be evicted at short notice. The Levelling Up White Paper also acknowledges that it is unacceptable to have nearly 100,000 households in temporary accommodation in 2022.

Despite all this, there is little new. As far as delivery of social housing is concerned, there are some rather vague proposals to support councils to deliver more council homes and to give Homes England (which funds affordable housing) a greater role.

Renters Reform and the Decent Homes Standard

There is a repeat of the announcement to end no-fault s21 evictions. A Renters Reform Bill was published as long ago as December 2019, but the White Paper has been delayed since then, and is now promised in the spring of this year. What is new is the suggestion that the Decent Homes Standard, which sets standards for the state of repair, facilities and services for social rented sector housing, should be applied across all tenures including the private rented sector. The practical impact is that it is possible that private sector landlords will need to bring their properties up to the Decent Homes Standard to be allowed to join the National Landlord Register (another warmed-up old proposal). It is not clear whether tenants will have enforceable legal rights to make their landlord bring their property up to the new standards. If so it would build on the Homes (Fitness for Human Habitation) Act 2018 which already gives tenants rights to take action where their home is unfit.

 

Andrew Brookes is based in our South London offices at London Bridge, and is the head of our Housing Department.  He has 18 years’ experience in social housing law; acting for both tenants and landlords during a dispute.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

 

As a tenant, you have rights over communal parts of your building along with having rights over your own flat. This includes places such as stairwells, lifts and entrance halls. You also have rights over the communal installations which service your flat and other parts of the block, such as heating and electricity.

 

What are your rights over communal parts of your building?

Section 11 of the Landlord and Tenant Act 1985 is the main source of your rights over the communal parts of your block. Under this provision, your landlord is required to keep the structure and exterior of the building in repair. Your landlord is also required to keep in repair and proper working order installations for water, gas and electricity as well as sanitation and heating. These duties cannot be contracted out in your tenancy agreement or lease.

The Act extends these duties to any part of the building in which your landlord holds an estate or interest. This means the duty also applies to sub-tenancies, i.e. to landlords who are themselves lessees/tenants. For instance, if your landlord is the owner of a flat where the council is the freeholder of the building, your landlord would nonetheless be under a duty to use their best endeavours to keep the communal parts of the building in repair as they would hold an interest in those parts by way of their lease with the freeholder.

It will often not be possible for a landlord of a subtenant to undertake the repairs as they may lack sufficient rights to do so. In these circumstances, your landlord has a defence for failing to carry out the repairs if they can show they used all reasonable endeavours to obtain the right but were unable to. Practically speaking, where your landlord is not the freeholder or in control of the common areas of your building, they are likely to pass the duty to carry out the repairs onto the freeholder. The freeholder would be under the same obligation to them and is more likely to be able to undertake the repairs. However, your freeholder may breach their lease obligations and you may need to make a claim for a Right to Manage.

Your lease or tenancy agreement may contain ‘express’ terms placing further specific obligations on your landlord to repair the common areas of your block. If this is the case, your landlord will be obliged to fulfil the specified duties. The scope of these rights will be dependent on the wording.

How to enforce your rights over communal parts of your building?

If the common parts of your block remain under your landlord’s control, which is likely to be the case if your landlord is a housing association or the council, then their duty to repair does not require you to first give notice of the disrepair. It would, nevertheless, be advisable to report any disrepair to the communal parts of your building to your landlord before beginning legal action. If you do so you are more likely to get repairs done without having to take legal action but if you don’t the compensation you are entitled to because your landlord fails to remedy the repairing covenant could be reduced.

If your landlord is not in control of the common areas of your block because you are a subtenant, you will need to give notice to your landlord before their duty to repair kicks in. Make sure you keep a record of any time you have given notice to repair as this will be useful evidence of the landlord’s breach of duty should they fail to carry out the repairs.

Communal issues affect multiple residents but not necessarily all residents equally. You may be concerned that you can only enforce your rights over communal parts of your building if all your neighbours act together. In fact, any tenant or leaseholder in a block has the right to bring legal action against the landlord or freeholder. However, there can be significant advantages in acting together.

If your landlord fails to repair the communal areas even after you have given notice, legal action may be necessary to get the repairs done. You can contact our team to advise you on how to enforce your rights.

Can residents compel council officers to use their enforcement powers against landlords and freeholders, and force councils to carry out inspections?

During ‘Housing Week’ at Anthony Gold my colleagues we are taking about on the ways in which tenants and leaseholders can work together to improve their homes. Our focus this week is on civil claims in the County Court but there is another legal route for residents to force landlords and freeholders to deal with problems in their properties: enforcement by local authorities.

In this blog post I take a look at that different approach, and its strengths and weaknesses in dealing with issues in the communal parts of buildings.

Local Authority Enforcement Action

When tenants and leaseholders are taking legal action against landlords and freeholders, for the most part, they are relying on the terms of the contract between those parties – agreements made in leases, and statutory implied contractual terms.

Local authorities do not have to rely on the terms of any contract to force landlords to carry out repairs and make improvements: council officers can use their enforcement powers in Part 1 of the Housing Act 2004 to carry out an assessment of hazards in a property – and where a serious hazard is identified, local authorities are required to take enforcement action.

What is HHSRS?

Local authority officers use the Housing Health and Safety Rating System to assess whether buildings are safe or not. HHSRS provides a way for officers to inspect a house and grade the likelihood of certain hazards occurring – and the harm caused if they do. There are 29 different hazards and property can be given a score for each one. This score will place the hazard in a ‘band’ between A and J. The most serious hazards (in bands A-C) are called category 1 hazards, and a local authority is under a duty to take action to get it fixed.

Why is this relevant to communal parts of buildings?

HHSRS is most often used as a way to monitor safety standards in rented accommodation, but it can be used to analyse any type of residential housing. Local authorities powers’ to inspect buildings under HHSRS does extend of common parts of buildings and this would include the exterior of a block of flats.

In November 2018 the Government published new guidance to assist environmental health officers to conduct HHSRS assessment high-rise residential buildings with unsafe cladding

What enforcement action can local authorities take?

Where a hazard is identified the Council may start by trying to negotiate with the landlord or freeholder. They can serve a ‘hazard awareness notice’ which has not legal force, but formally notifies the landlord about the hazards.

More robust measures are also available. Councils can require specific improvements to be made (an improvement notice) or they prohibit occupation of a property (a prohibition order). Councils can also carry out emergency remedial action themselves, or use more flexible ‘suspended’ notices and orders (which take effect after a specified period of time or after a specified event occurs).

There have been several examples of improvement notices served owners of buildings with apparently unsafe cladding. One example is Havering Council, who served a prohibition order on a freeholder requiring them to commission a qualified chartered Engineer to carry out repair works on cladding, removing the unsafe material and replacing it with materials compliant with current building regulations.

Can residents force councils to carry out inspections?

It is possible for residents to simply ask local authority officers to carry out an inspection and HHSRS assessment. However, limited resources might make council unwilling to carry out inspections on occasion. Budgets for housing standards enforcement have been hit hard in recent years, and it can also be very difficult to find staff with the specialist skills required to carry out HHSRS assessments (particular for unusual or complex assessments).

There is a way to force local authorities to carry out inspections. A justice of the peace (magistrate) with jurisdiction in any part of the district, or a parish or community council for a parish or community within the district can make an official complaint. If one of these persons makes an official complaint and the circumstances complained of indicate that there may be a hazard, the local authority must inspect. It might be appropriate for a residents association to make a request to an appropriate person for them to make an official complaint if they feel that they are being ignored by the council.

Limitations of HHSRS to improve building safety

Even where Environmental Health Officers inspect, this does not mean that they will take enforcement action. The council may conclude that there is no hazard present, and they always have a discretion about the type of action to take anyway. Residents would not be able to appeal a decision of the council not to take formal enforcement action to the Tribunal. In theory residents could challenge a decision not to take enforcement action in the High Court by way of a claim for judicial review, but for various reasons this is not a very attractive  or practical route.

An improvement notice will require someone to do the work, but they do not solve the problem of who will pay. The Council which pays for the work themselves – it is the responsibility of the party required the do the work. Professor Susan Bright has written about the particular issues arising from HHSRS in leasehold buildings. Whenever HHSRS is used there is a danger that the costs will simply end up being paid by leaseholders.

Another important shortcoming with HHSRS is that it cannot be used against local authorities (since they are the ones who serve the enforcement notices). This means that HHSRS cannot provide a way to compel local authority landlords to improve building safety.

Most importantly, tenants and leaseholders do not have any control over enforcement under HHSRS, and they will not receive compensation from their landlords. If either compensation or being ‘in the driving seat’ is a priority, civil claims might be more helpful to residents.

The Homes (Fitness for Human Habitation) Act 2018 brought in new obligations for landlords. Previously, the structure, exterior, and services in the building had to be fixed if they were broken. This limited the scenarios in which tenants could claim for unfit housing conditions. The old law still applies, but this new legislation means that there is an additional requirement that homes be fit for human habitation.

Our housing law experts have put together everything you need to know about the Fitness for Human Habitation Act 2018 in the following guide for tenants. Read on to find out more.

 

 

What is the Fitness for Human Habitation Act 2018?

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). 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 applies to all social and private sector tenancies in England only.

 

Who does the Fitness for Human Habitation Act 2018 apply to?

The Fitness for Human Habitation Act came into force three months after it has been passed, on the 20th of March 2019. However, this only applied to tenancies made after that date. Therefore, any tenancy entered into before the 20th of March 2019 (ie. signed by both parties and executed) will not be covered by the legislation initially, even if the actual occupation begins after 20 March. However, any tenancy that is newly granted, is renewed, or comes into existence as a periodic from a fixed term after the 20th of March 2019 will be covered by the legislation immediately.

Tenancies which were periodic before March 20th will not be covered by the new provisions until that time, 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 likely not to be covered as they will not have come into existence on the expiry of a fixed term contract, but by way of a continuation of the fixed term. The legislation will not affect tenants 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.

 

What’s the difference between the Fitness for Human Habitation Act, and the Housing Health and Safety Rating System (HHSRS)?

Contrary to the misinformation spread by some private landlord advisors and pressure groups, the Fitness for Human Habitation Act (FFHH) is not the Housing Health and Safety Rating System (HHSRS) for tenants. The standard of fitness is to be assessed by the court using the 29 hazard profiles provided 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, whereas the FFHH is a means of assessing fitness for a specific occupier. 

Therefore, the FFHH is not assessed by considering whether there are category 1 or 2 hazards in a property (as the HHSRS is). 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 numerous 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 be fit for the specific occupier of the property, if they do not fall into one of those risk groups.

 

Are there any exemptions from the Fitness for Human Habitation Act 2018?

Although the Fit for Human Habitation Act of 2018 is taken very seriously by the courts, there are a few exemptions from the legislation. For instance, tenancies that are for more than seven years are not covered by FFHH and are exempt from s11 repairing obligations as well. However, a tenancy lasting seven years with a break clause at two years will be treated as a two-year tenancy unless the break clause is tenant only.

Some other instances where a landlord may be exempt from the FFHH Act include:

• Instances where a tenant has ‘not acted in a tenant-like manner’ and taken steps to maintain the property to a reasonable standard
• Issues caused by efforts to improve the property in case of destruction or damage caused by an accident
• Issues caused by building works which the landlord had not given consent to be carried out on the property

If you’re a tenant who is concerned about your current living situation as it relates to the Fitness for Human Habitation Act, or are a landlord that is facing a claim, we’d recommend seeking experienced legal advice. You can contact a member of our housing and property disputes team via our contact page.

 

What are the landlord’s obligations with regard to the Fitness for Human Habitation Act 2018?

It is likely that the case law already applying to section 11 disrepair will also apply to the Fitness for Human Habitation Act 2018. Therefore, a landlord will not be liable for fitness of a property 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.

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.

For many private landlords, this should not be a huge concern. Most private residential property is fit for habitation and if it is not, then it’s vital that steps are taken immediately to ensure that it is.

Although for many years there have been significant issues with fitness for human habitation in the social housing sector, it is thought that the Fitness for Human Habitation Act 2018 will go a long way towards addressing these problems.

 

What does it mean for a property to be fit for human habitation?

To tenants who are struggling with the condition of their current property, it might be unclear what is meant by the term ‘fit for human habitation’. 

For a property to be deemed ‘fit for human habitation’, it must be capable of occupation for a reasonable time without risk to the health or safety of the occupants, and without undue inconvenience or discomfort to the occupants. 

This means that for the conditions to be illegal and unfit, they must present a real risk to the health and wellbeing of the tenants. This means that the threshold for a property to be deemed ‘fit’, is actually relatively low.

We cover this in more detail in our related post, How bad do conditions have to be to make a property unfit for human habitation? However, some of the most common tenant complaints which can lead to a property being deemed unfit for human habitation according to the FFHH Act of 2018 are:

• Infestations of pests
• Poor ventilation
• Infectious disease
• Mold or excessive damp
• Flooding
• Inadequate security

 

Can an entire block of flats be deemed unfit for human habitation?

We are increasingly seeing scenarios where an entire block or estate is deemed unfit for human habitation, due to a major issue that affects all the tenants. Leaseholders may be affected by the same issue, but have no claim under the Fitness for Human Habitation legislation, although they may have other routes to bring a claim.

Below are some of the most common issues which affect apartment blocks, which can sometimes be claimed against as part of the FFHH Act 2018. 

 

1. Asbestos

It is not uncommon for all the flats within a block or estate to have asbestos in the floor tiles, wallpaper, ceilings, and even within the walls. If undisturbed, this presents no risk and will not make homes unfit for human habitation. However, if a major incident such as a leak or building works disturbs the asbestos with the common parts or multiple flats, then this will make some or all of the homes unfit for human habitation. There is no requirement to bring a fitness claim that the tenants are actually harmed by the asbestos, the claim is for the potential harm, to obtain damages and most importantly, force the landlord to make the building safe.

 

2. Communal heating

If heating and/or hot water is supplied from a communal system and that system fails repeatedly or stops for an extended period of time, then the homes in an entire block can potentially be declared unfit for human habitation.

Likewise, the design of the heating or hot water system may be such that residents can never heat their flats to a comfortable temperature or have a sufficient flow of hot water to bathe. Conversely, some communal heating systems may make all flats, or all flats on a certain level, uncomfortably hot. This kind of design issue can also make an entire block unfit for human habitation, due to the possible impact on the tenants’ health and wellbeing.

 

3. Fire Safety

Design issues such as flammable cladding, insufficient means of escape in a fire, inadequate fire doors and the lack of working fire alarms (often all in conjunction) can make an entire block unfit for human habitation. Flammable cladding, in particular, was a significant factor in the Grenfell tragedy of 2017, and is something which is very much an area of concern for communities, and the UK government. 

If a fire risk assessment (FRA) has correctly given a block a risk rating of ‘intolerable’ then the block will be unfit for human habitation and indeed uninhabitable. This rating means that the building (or relevant area) should not be occupied until the risk is reduced, and the property is made safe. 

A ‘substantial’ risk could also equate to being unfit for human habitation. An FRA alone should not be relied on, and it is unfortunately still not uncommon for these assessments to be undertaken as a tick box exercise without real regard to the conditions in the building. However, it is a good starting point if you have concerns about fire safety in your block. FRAs for social landlords are often available online.

 

4. Windows or other design features

It is not uncommon that the design of a block means that every or most of the residents are adversely affected. This could be windows that do not open, are draughty or let in water. Poor design and a lack of proper ventilation could lead to mould growth, excessive damp, and a whole host of other problems which can directly impact the health and wellbeing of tenants.

Again, the recent tragic case of Awaab Ishek, a toddler who died from mould exposure in a social housing property in 2020, has led to proposed changes in the law, imposing deadlines on landlords to tackle toxic mould infestations in tenanted properties.

 

Improving Conditions for Everyone

It may be that one of the above issues alone is not severe enough alone to mean a property is not fit for human habitation. However, it is often a combination of issues, perhaps with some extra individual problems within flats, which can make a property – or even a group of related properties like a block of flats, unfit for habitation. If a property is unfit, then the tenant can bring a claim against their landlord for compensation and repairs.

The Home (Fitness for Human Habitation) Act 2018 gives tenants the opportunity to take action together to improve conditions for everyone in a shared building. Some of the above issues may not be obvious, and may be very expensive or difficult for the landlord to fix. However, given that they are often risking the health and safety of everyone in the block, and having a day-to-day impact on resident’s wellbeing, it is the landlord’s legal obligation to address the issues.

 The claims are sometimes too low in value for tenants to bring a claim on an individual basis. Tenants can use the Fitness Act to take action together to improve conditions.

If you are concerned that your building is unfit for human habitation, and you would like to take action, please contact Anthony Gold. Our team is on-hand to support individual tenants, and even tenants wishing to bring a shared claim against their landlord, through this often tricky legal process. 

Contact a member of our expert Housing Law team via our contact page, and we’ll be in touch with you shortly to discuss your case.

 

March 2020 Amendment to Landlord and Tenant Act 1985

Since the 20th of March, 2020, section 9B(4) of Landlord and Tenant Act 1985 means that the section 9A ‘fit for human habitation’ obligation applies to all periodic and secure tenancies in England that existed on 20 March 2019 and are ongoing.

This means that the provisions introduced by the Homes (Fitness for Human Habitation) Act 2018 now apply to tenancies in England of less than 7 years where:

1. a) The tenancy began on or after 20 March 2019 (including ‘renewals’), from the date of the tenancy.
2. b) The tenancy was for a fixed term that began before 20 March 2019, but became a secure or periodic tenancy on or after 20 March 2019 – the obligation applies from the date the tenancy became secure or periodic.
3. c) All periodic and secure tenancies that were already in existence on 20 March 2019, from 20 March 2020.

Except for some few tenancies where the fixed term is longer than a year (but less than seven years) that began before 20 March 2019, this means that the fitness obligation now applies to virtually all residential tenancies in England.

The fitness obligation is not retrospective, so breach of duty (and with it any damages for the breach) only arises at the point the obligation applied (though there may well be damages for disrepair or nuisance for a previous period).

Giles Peaker, who worked with Karen Buck MP on getting the Homes (Fitness for Human Habitation) Act 2018 in to law, said “I’m delighted that the duty on a landlord to keep people’s homes fit for human habitation now applies to nearly all tenancies in England, and that the rollout of the Act is complete. In these difficult times, having a safe home matters more than ever.”

 

Case Studies

 

Furnished Lettings and Fitness for Habitation

Even without a written tenancy agreement, landlords have responsibilities for repairs which they cannot avoid. This is because the law implies certain repairing obligations into tenancy agreements. The most well-known of these are the statutory implied terms set out in s11 of the Landlord and Tenant Act 1985.  

Under this provision, landlords are responsible for repairing the structure and exterior of the dwelling. They must also maintain installations in the dwelling-house for the supply of water, gas and electricity and for sanitation and the installations for space heating and heating water.

However, there are other repairing obligations implied into tenancy agreements which are less well recognised. One of these is the term implied at common law that furnished accommodation is fit for human habitation at the start of the tenancy.

This implied term only applies when furnished accommodation is let for immediate occupation. It is not applicable when premises are let unfurnished. The obligation also only arises at the outset of the letting. If the premises are fit for habitation at the commencement of the tenancy, there is no obligation on the landlord to keep them in that condition. However, if the accommodation is unfit at the time of letting and this is only discovered at a later stage, then the obligation is still triggered. It is the unfitness at the start of the tenancy which is key.

 

Fitness for Human Habitation Case Study: Smith v Marrable (1843) 11 M& W5

To understand what is meant by the expression ‘fit for human habitation’ it is useful to look at cases where the courts have judged accommodation to be unfit for human habitation.

They key case in this area is the 19th century decision of Smith v Marrable (1843) 11 M& W5.

In September 1842, Sir Marrable agreed to rent a furnished house in Brighton for a period of five to six weeks. The day after he and his family moved in, his wife, Lady Marrable, discovered that the house was infested with bugs. Following the landlord’s unsuccessful attempt to rid the house of the infestation, Lady Marrable notified the landlord that they were leaving the property, and they would only pay one week’s rent. The landlord sued for the rent balance.

The judges ruled in favour of the Marrables, concluding that an implied condition in the letting of a furnished house is that it shall be reasonably fit for habitation; if it is not (for example where it is infested with bugs) the tenant may quit without notice.

The principle was established that where a furnished property is let unfit for human habitation, the tenant has the right to repudiate the contract and move out.

Subsequent cases have built on this decision and provide further examples of when a property would be considered unfit. Examples from case law include properties where:

1. There is defective drainage or sewerage systems;
2. The property is infected (one case involved a property infected with measles, while another concerned a house in which a person had recently been suffering from pulmonary tuberculosis);
3. There is a lack of safety (where, for example, the walls are so dilapidated that it is unsafe to continue living at the property);
4. There is an insufficient water supply.

Accommodation may also be considered unfit for human habitation if there are hazards as defined by the Housing Health and Safety Rating System (HHSRS), introduced by the Housing Act 2004. This new system replaced the ‘fitness for habitation’ standard set out in the Housing Act 1985.

 

What can a tenant do if they are living in a property which is not fit for human habitation?

If a tenant moves into a property which is unfit for habitation at the outset, he or she has the option to leave and not be bound by the tenancy agreement. This is because the unfitness of the property is considered to be a repudiatory breach of contract (i.e. a breach that goes to the very core of the contract, preventing the primary obligations under the contract from being performed.) The tenant may also claim compensation for breach of contract.

It is very important for the tenant to seek specialist legal advice at an early stage if these circumstances apply. Paying rent or delaying in moving may result in the tenant being deemed to have affirmed the tenancy agreement and the right to leave may be lost. On the other hand, if rent is not paid, the tenant runs the risk of being sued for rent arrears.

If you would like to take specialist advice on any aspect of disrepair and tenants’ rights, then please contact a member of our housing team on 020 7940 4000, or visit our contact us page to make an online enquiry.

 

The Fitness for Human Habitation Act 2018: Frequently Asked Questions

What makes a house unfit for human habitation?

A house, or residential property, is considered unfit for human habitation if it has serious issues which make it unreasonable to expect a tenant to live there. Normally, these issues pose a direct risk to the tenant’s health, safety, or wellbeing. For instance, mould, flooding, structural damager or unreasonably high or low temperatures could all render a house as being classified as unfit for human habitation under the 2018 Homes Act. 

 

What is Section 9a of the Homes Fitness for Human habitation Act 2018?

Section 9A refers to a section of the Homes Fitness for Human Habitation Act of 2018; these cover the legal requirements for Fitness for human habitation of dwellings in England. This section of the act specifically outlines what is acceptable and what is not acceptable with regard to a residential property, and what criteria it must meet in order to be fit for human habitation. 

It is the landlord’s responsibility to ensure that all these standards are met. Otherwise, they may find themselves in breach of the law if the resident or tenant has given notice of issues with the property which are covered by the Fitness for Human habitation Act 2018.

 

What is Section 10 of the landlord tenant Act?

As of 2019, Section 10 of the landlord tenant act of 1985 outlines the specific areas which must be assessed to determine if a house is fit for human habitation. These assessments include, but are not limited to: ventilation, water supply, repair, stability, freedom from damp, facilities, and more. 

 

How can I make a claim against my landlord if my home is unfit for human habitation?

If you believe that your home is unfit for human habitation, and your landlord has refused to make the necessary repairs or address the problem, you should seek legal advice at your earliest convenience. There are many charitable organisations, such as Shelter and Citizen’s Advice, who can offer support and general guidance. However, if you wish to bring a legal claim against your landlord for compensation, you will need to speak to a solicitor or trusted legal professional. 

 

What advice can you give to tenants living in an unfit property?

If you are a tenant living in a property with serious problems, which may render it unfit for human habitation, we recommend:

• Documenting any and all issues you are having with the house, from when the issues started
• Keeping a record of each time you have communicated with the landlord or lettings agent about the problem, even if they do not respond
• If you are able to speak to an individual higher-up, do so
• Contact Citizen’s Advice, or a housing organisation like Shelter, who can offer free advice based on your specific situation 

 

Are you a tenant and worried about damp, mould and asthma in your house?

The most recent evidence heard by the Grenfell Tower Inquiry has been from testing and certification bodies. Testing bodies assess products in line with the standards of statutory regulations and certification bodies assess the available data for a product to determine its compliance with those regulations. Certification is given to a product if it is found to be compliant.

The testing and certification bodies that were involved in the Grenfell Tower fire are the National House Building Council (NHBC), the Centre for Window and Cladding Technology (CWCT), the Local Authority Building Control (LABC), the United Kingdom Accreditation Service (UKAS) and the Building Research Establishment (BRE). Each body played a vital role in the assessment or certification of the building materials that were used in the refurbishment of Grenfell Tower.

It is clear from the Grenfell Tower fire that the level of testing and certification of construction products was insufficient and failed to guarantee safety as it was intended to. Some of the bereaved, survivors and residents have argued that the issues that lead to this failure stem from these bodies being private/independent. Private certification bodies are more likely to be incentivised by profit, coupled with the market influence that comes with working with large manufacturers, which can come at the cost of public safety. Bereaved, survivors and residents have also argued that there existed what could be seen as inappropriate relationships between manufacturers and certification bodies which led to preferential treatment of manufacturers during the certification process.

In response to evidence heard during the Inquiry, other cases of testing irregularities, and the Independent Review of Building Regulations and Fire Safety by Dame Judith Hackitt, the government have commissioned an Independent Review of the Construction Products Testing Regime. This review is expected to tackle the weaknesses within the testing and certification system. The report has not yet been published and there is no expected publication date, but it will be interesting to explore the extent of the recommendations in the report, particularly in light of the evidence currently being heard at the Inquiry. There is no doubt that the current system needs reform.