A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
On 20 December 2018, the Homes (Fitness for Human Habitation) Act 2018 received royal assent and will come into force on 20 March 2019. The Act amends the current implied “fitness obligations” under the Landlord and Tenant Act 1985.
It will affect:
- New tenancies of less than 7 years term, granted after 20 March 2019;
- New secured, assured or introductory tenancies for a fixed term of 7 years or more, granted after 20 March 2019;
- Existing periodic or secure tenancies (but only after 20 March 2020); and
- Fixed leases renewed after 20 March 2019 for a further fixed term (the renewal will be treated as a grant of a new tenancy).
What are the new provisions?
The new Section 9A(1) replaces Section 8 of the Landlord and Tenant Act 1985 which required landlords to let properties “fit for human habitation”, except that those provisions only applied to properties within a certain rent limit. The new Section 9A removes any rent limit and now imposes a covenant on the landlord, that the “dwelling” (previously referred to as a “house” only):
- Is fit for human habitation at the time the lease is granted or otherwise created, or if later, at the beginning of the term of the lease; and
- Will remain fit for human habitation during the term of the lease.
The covenant will also apply to all parts of the building the landlord has an interest or estate e.g. common parts or retained parts (the outside walls, windows and roof). Should the landlord fail to comply, the tenant will have a right to take action.
As you would expect, there are of course exceptions and/or potential defences that a landlord can rely on, which are:
- Where “unfitness” has been caused by a tenant’s failure to behave in a tenant-like manner.
- A landlord is not expected to rebuild or reinstate the dwelling where the damage has been caused by an inevitable act; e.g. fire, storm or flood.
- Carry out works where a third-party consent is required or where the landlord may be breaching other regulations and/or enactments; for example planning permission and/or buildings consent.
What does “fit for habitation” cover?
The amended Section 10 states that when determining whether a household dwelling is unfit for human habitation, regard will be had to the following:
- Freedom from damp;
- Internal arrangement;
- Natural lighting;
- Water supply;
- Drainage and sanitary conveniences;
- Facilities for preparation and cooking of food, and for the disposal of waste water; and
- In relation to a dwelling in England, any prescribed hazard.
The property will be regarded as unfit for human habitation, if and 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.
The key issue and question for the Court will be whether the dwelling is “not reasonably suitable for accommodation in that condition”. What will assist the Court is an expert report which considers the property is “unfit for human habitation”, but then also provides confirmation as to what would be required in order to put matters right.
Whilst we have provided you with a brief insight…
- We expect that further details will be available;
- We expect that the Housing Disrepair Pre-Action Protocol may be amended to include fitness claims;
- We anticipate that legal aid provisions will remain the same and that the conditional fee agreements (no win no fee) will still be available; and
- We fully expect that there will be more disrepair claims brought by tenants via their solicitors.
For more information, please contact Baljit Basra.
Please also look out for our forthcoming training events, specifically in relation to management of disrepair claims, in May 2019.
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