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What is the Fitness for Habitation Act?

by Jane Willacey

Housing disrepair claimants will have a new weapon available to hem in March 2019. It goes without saying that houses let for people to live in should be fit for human habitation, but for many years, there has been no meaningful law requiring this.

Provision was included within the Landlord and Tenant Act 1985 (LTA 1985) at Section 8, which implied a term into tenancy agreements that, on the grant of a new tenancy, the property would be fit for human habitation and that it would be kept as such throughout.

The problem with Section 8 is that it only applies to tenancies where the rent is £80 in London or £52 elsewhere and there has been no inflationary adjustment of these limits.

In March 2019, the Humans (Fitness for Habitation) Act 2018 (‘the Act’) comes into force and this has the effect of amending LTA 1985 to remove the limits and make the provisions applicable to most tenancies. The act can be found here:

Once operational, the Act will require the courts to consider whether a property is in a condition of acceptable:

(i) Repair;
(ii) Stability;
(iii) Freedom from damp;
(iv) Internal arrangement;
(v) Natural lighting;
(vi) Ventilation;
(vii) Water supply;
(viii) Drainage and sanitary conveniences;
(ix) Facilities for the preparation and cooking of food; and
(x) Facilities for the disposal of waste water.

A property is deemed to be unfit for human habitation, pursuant to the above requirements as found at Section 10 of the LTA 1985, if it is so far defective in one or more of these respects that it is not reasonably suitable for occupation in that condition. Tenants suffering from housing disrepair not covered by Section 11 may now have a claim that otherwise would have failed.

It is likely that the case law arising from the Act will continue in a similar fashion to that handed down under the LTA 1985. Some examples of properties that were deemed unfit for human habitation are:

(a) A small house where the only window could not be opened;
(b) A house where plaster was falling from the ceiling;
(c) A property where the ceiling had collapsed; and
(d) A home where the waste disposal system failed causing serious damp.

There are limitations on what is covered. There is no liability for parts not let to the tenant such as communal areas and occasional incursions from vermin from outside would not fall under the provisions.

A guide to standards for Section 8, given by Atkin LJ in 1926, was:

“If the state of repair of a house is such that by ordinary use damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation.”

Despite this, the courts have taken an approach that the provisions should be limited to premises which can be made fit by the landlord at reasonable expense. This ruling in Buswell v Goodwin [1971] 1 WLR 92, CA has no basis in either Section 8 or the Act and is considered to be ripe for review by Luba, Foster and Prevatt in Repairs: tenants rights (5th edition).

Given the re-invigoration of the provisions of Section 8 by the Act, it shall be fascinating to see whether the Courts follow the decision in Buswell or take the opportunity to set a new bar for claims to ensure that landlords do not have the opportunity to rely on cost as an excuse for letting property considered unfit for human habitation.