Members only
A fitness for human habitation claim is a contractual cause of action available to tenants. The landlord is under an implied obligation to ensure that the property is fit for human habitation at the start of the tenancy and remains so during the tenancy. Unlike a traditional disrepair claim under s11, the focus is not simply on whether a landlord has repaired a relevant defect, but on whether the property is reasonably suitable for occupation as a home.
The two leading points in Harvey are, unfitness can be found when:
- Living conditions present a risk to health and safety - the existence of one of the 21 hazards categorised under the Housing Health and Safety Rating System (HHSRS) is not strictly necessary, but of course will weigh into a judge's determination.
- Living conditions have a significantly negative effect on the occupier's comfort and convenience, even if there is no risk to health and safety.
Harvey confirms that ‘harm’ is not confined to physical injury. Severe damp and mould, infestations, offensive odours and other poor living conditions may adversely affect an occupier's mental wellbeing and can therefore be relevant to the assessment of fitness.
Prior to Harvey, much of the focus in fitness claims was on whether defects created a risk to health and safety, particularly following Jillians v Red Kite Community Housing (2024). However, Harvey confirms that unfitness may also arise where conditions have a sufficiently serious impact on comfort and convenience.
Take recurring mould as an example, a claimant may previously have focused on establishing that mould presented a risk to health. Following Harvey, claimants are likely to place greater emphasis on the wider impact of the condition. If occupiers are repeatedly required to clean mould, move furniture, redecorate affected rooms, replace damaged possessions or tolerate persistent unpleasant living conditions, it is foreseeable that these matters could be relied upon as demonstrating a loss of comfort and convenience, even where evidence of direct physical harm is limited.
The judgment also confirmed that the test under s10 is a holistic one. Fitness should be assessed over a reasonable period, not merely by reference to conditions on any one inspection date. Relevant evidence may include expert reports, inspection records, photographs, repair histories, occupier evidence and any relevant HHSRS hazards.
Significantly, the Court emphasised that whether a property is fit for human habitation is ultimately a question for the judge rather than the expert. Whilst expert evidence remains central to identifying defects, causes and remedial works, an expert's opinion that a property is or is not ‘unfit for human habitation’ is not determinative.
A defence under s9A(3) based on the tenant's own breach of covenant remains available. However, the judgment makes clear that a landlord will avoid liability only where the unfitness is wholly or mainly attributable to that breach. A default which is merely a secondary or contributing factor will be insufficient.
Unfitness attributable to one defect can make a property unfit, but even where unfitness is accepted this does not automatically entitle a tenant to a decant. Harvey will make it harder for claimants to argue that a decant is the inevitable consequence of proving unfitness.
Practical considerations
- Do not focus solely on HHSRS hazards. Are defects affecting the tenant's everyday use and enjoyment of the property? For example, repeated mould growth requiring frequent cleaning, loss of use of a bedroom, persistent odours.
- Take a broad evidential approach. Retain inspection notes, photographs, repair logs, contractor reports and communications. Build a detailed evidential picture and do not be over reliant on one finding at a certain point in time.
- Record tenant vulnerabilities. Whilst fitness remains an objective test, known physical or mental health vulnerabilities may be relevant to understanding the impact of housing conditions and should be appropriately recorded.
- Ensure damp and mould investigations identify the root cause rather than simply treating symptoms. Consider underlying causes such as water ingress, defective ventilation, thermal bridging or insulation issues. Simply recording that mould was cleaned or treated may carry limited weight if the underlying cause was not investigated.
- Exercise caution when advancing lifestyle arguments. When arguments are raised, ensure there is evidence to support it. For example, evidence of blocked air vents, disabled extractor fans or refusal of access is likely to be more persuasive than general assertions regarding condensation or housekeeping.
- Assess fitness claims separately from traditional disrepair claims under s11. A claim may fail under s11 but still succeed under s9A. Consider not only whether the landlord was obliged to repair a defect, but also whether the overall living conditions remained reasonably suitable for occupation.
Conclusion
Harvey clarifies that fitness claims require a broader assessment than simply identifying disrepair or HHSRS hazards. Greater emphasis is likely to be placed on the lived experience of occupiers, the cumulative impact of defects and the quality of the documentary evidence available. Claimants will undoubtedly seek to rely upon the judgment to advance a wider range of claims under s9A. Whether the courts ultimately adopt an expansive approach remains to be seen. What is clear, however, is that fitness for human habitation is now a distinct and increasingly powerful cause of action which can no longer be treated as merely secondary to a traditional disrepair claim.
Note for Scottish readers
The decision in Harvey concerns the English fitness for human habitation regime under the Landlord and Tenant Act 1985. Similar issues in Scotland are generally considered under the repairing standard contained in the Housing (Scotland) Act 2006.
