New Fitness for Habitation Act gives tenants the right to take landlords to court

The brand new Fitness for Habitation bill has been passed in Parliament and will come into effect in March, giving tenants of rented properties in England the right to take their landlord to court for failing to provide housing that meets current standards set out by the Housing Health and Safety Rating System (HHSRS). 

The long-overdue bill replaces the now defunct 'fit for human habitation' clause in the Landlord and Tenant Act from 1985, which can no longer be applied due to the outdated rent caps outlined in the clause (£80 per year in London and £52 per year elsewhere in the UK). 

The HHSRS sets out nine categories of issues or hazards that can make a home unfit for habitation. The most urgent category, category 1, is identified as posing 'immediate risk to a person's health and safety' and includes: 

• unsafe electrics;
• a broken boiler;
• a leaking roof;
• mould on the structural elements of the property (i.e. wall or ceiling);
• restricted access to the property due to broken steps/landing;
• unsecure doors and broken locks;
• a pest or vermin infeststation;
• excess cold or heat.

Oddly, the current assessment process does not cover mould growth that's due to a fault in the design of the property, for instance due to the lack of proper ventilation, and the bill will bridge that gap in legislation. Despite this rating system, recent research by Shelter has found that over one million tenancies in England are for properties with a level-one hazard; that's around three million people who live social and privately rented accommodation. There is evidence that the number of properties with the most serious problems is increasing, while the number of enforcements to fix those properties have drastically fallen. 

The HHSRS has been an inefficient system for tenants in several ways. The time from assessment to enforcement can be long, since private tenants will have to go through their local authority Environmental Health department, which will often be overstretched and may have difficulty finding the funds to carry out the repairs themselves. Social tenants are in an even worse position, since the council cannot take enforcement action against themselves, leaving council tenants in legal limbo. 

The Fit for Habitation Bill will allow tenants to bypass these long-winded and inefficient processes by applying to court directly, and, crucially, with the ability to provide their own photographic evidence of unfit living conditions, without the need to involve an environmental health officer (subject to delays) or independent surveyor (this can be expensive). Court action will also provide social tenants with an effective tool for taking action against council landlords. The introduction of the bill should also have an indirect effect of raising rented property standards across England, urging landlords to take tenants' requests for repairs seriously and carrying out the repairs promptly. 

Importantly, the Bill will not penalise landlords who keep their properties in good repair, since it doesn't introduce any new fitness for habitation standards, but only reinforces the standards already outlined by HHSRS. Meera Chindooroy, Policy and Public Affairs Manager at the National Landlords Association (NLA), says: 

'The Act won’t change the protections which tenants have over the condition of their home, as their rights are already set out in law under the Housing Health and Safety Rating System (HHSRS). What this Act does provide for tenants, however, is the ability to bring a case directly to court, rather than needing to go through their local authority. Given the lack of enforcement at local authority level, this is a positive step for tenants, and also for the vast majority of landlords whose properties meet the standards required, but who are undercut by criminal landlords who flout the law.' 

Chindooroy also clarifies the position of those who have been living at their current property for over seven years (the bill applies to tenancies of seven years or less); what is meant by this number is a continuous lease of over seven years, which is rare:

'Tenants with a lease of seven years are responsible for the repair of the property, unless otherwise stated in the tenancy agreement, so will not be covered by the Homes (Fitness for Human Habitation) Act 2018. However, the majority of longer-term tenancies are periodic rather than fixed, so will be covered by the Act, regardless of the length of time a tenant may remain in a property.'

It is hoped that the Introduction of the Fitness for Habitation Bill should also help tenants facing illegal evictions for reporting their landlords' failure to carry out repairs, since a court action enforcing the landlord's obligation to keep the property habitable will make them less likely to retaliate with an eviction that can then easily be proven to be unfair. 

The bIll is an important first step in improving both the living conditions of renters in England and increasing their legal rights. What remains to be seen is whether the passing of the bill will trigger further legislation to protect renters, for example from unreasonable rent hikes or landlord harassment.

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