We are steadily approaching the anniversary of the Homes (Fitness for Human Habitation) Act 2018 coming into force. For the first 12 months it has only applied to new tenancies, but the major undertaking for registered providers of social housing is to ensure that by 20 March 2020 the rest of their housing stock is fit for human habitation.  

Background

Primarily the Act was sharply implemented to tackle some of the appalling conditions arising from less stringent regulation in the private sector, however, registered providers of social housing are inadvertently captured.  

The main aim was to raise property standards and to make it easier for tenants to hold their landlord to account.  

What are the fitness standards? 

Section 10 of the Landlord & Tenant Act 1985 has been amended to set out what needs to be considered in determining fitness standards. Various factors need to be considered including: 

• Is the property free from damp? 
• Is there an adequate water supply? 
• Are there adequate drainage and sanitary conveniences? 
• Is there adequate natural lighting and ventilation? 

Additionally, the 29 hazards prescribed in the Housing Act 2004 and the Housing Health and Safety Rating System (England) Regulations 2005 should to be considered, including: 

• Exposure to house dust mites, damp, mould or fungal growths.  
• Exposure to low or high temperatures. 
• Exposure to asbestos fibres. 
• A lack of adequate space for living and sleeping.  
• A lack of adequate lighting.  
• Exposure to noise. 
• Falls associated with toilets, baths, showers or other washing facilities. 
• Falling on level surfaces. 
• Falling on stairs. 
• Falling between levels. 
• Electrical hazards/exposure to electricity. 

Why does this create new risks for landlords? 

Landlords are accustomed to managing the risk of claims arising from housing disrepair, including linked public liability claims, such as personal injury and damage to property. However, those claims rely on the claimant establishing that the issue complained of forms part of the landlord’s repairing covenant. The duty did not extend to ensuring the property was free from hazard. 

To ensure that fitness standards are met and avoid exposure to compensation claims improvement works may be required, which is clearly an obligation beyond what landlords have previously been expected to do. 

What has not changed is the need for the landlord to have notice of the issue and a reasonable amount of time to resolve it. The landlord can also not be fixed with liability for problems created by the tenant.  

Minimising the risk  

• Familiarise yourself with the Act and ensure relevant departments are aware. 
• Fitness standards should be considered when carrying our void inspections. 
• Fitness standards should be considered when considering planned maintenance, for example, what is required and what should be executed.  
• Fitness standards should be factored into inspection regimes for common parts. 
• Managing damp issues will require focused attention. Satisfy yourself with qualified professional input that damp issues you are not addressing are condensation dampness caused by the tenant’s own actions.  
• Limiting exposure on constructive notice by introducing procedures that are proactive in addressing repairs problems. For example, ask the tenant about repairs issues as a matter of course at each contact and feed back to the repairs and maintenance teams.  

Matthew Hyam, Partner, BLM (matthew.hyam@blmlaw.com)