Landlord Habitation Act - your obligations as a landlord Homes (Fitness for Human Habitation) Act 2018

Homes (Fitness for Human Habitation) Act 2018 - your obligations as a landlord

In March 2019, the Homes (Fitness for Human Habitation) Act 2018 came into force in England, as an amendment to the Landlord and Tenant Act 1985. It was brought in to ensure that, legally, rented properties are fit for human habitation at the start of a tenancy and remain so throughout the term of the lease agreement.

Property expert Kate Faulkner explains what the Habitation Act covers and your obligations as a landlord.

What is the Homes (Fitness for Human Habitation) Act 2018?

Landlords have been legally obliged to respond to tenants' complaints about the condition of their property and make any necessary repairs in a reasonable timeframe since October 2015, when the Deregulation Act became law. The Homes (Fitness for Human Habitation) Act 2018 puts in place a standard for properties at the point a tenancy begins, stating that there is an implied agreement between the landlord and tenant, from the outset, that the property will be let and maintained 'in a state of fitness for human habitation'.

The reality is that there are no new obligations for landlords under this Act. It simply requires you to ensure you are meeting your existing responsibilities with regards to property standards and safety.

The Act also has provisions that mean it will be easier for landlords to gain access to properties that need repair. Meanwhile, tenants will find it easier to take landlords to court if a property is considered to be 'unfit for human habitation', as they won't have to rely on their local authority in order to do so.

The government expects that by empowering tenants to take action where landlords are failing in their responsibilities, standards in the PRS will improve. This should also support the vast majority of good landlords who already maintain their properties in a good condition, as they hope they are not undercut by 'rogue' landlords letting unsafe properties cheaply.

What has the introduction of this 'Habitation Act' meant for landlords?

For the majority of landlords, who have always operated in a responsible and professional manner, it won't have made any difference. However, a minority will have had to invest in making improvements to bring their properties up to standard before they can be legally let. Any landlord who carried out renovations without getting the work properly inspected and signed off according to Building Regulations could face a hefty bill to ensure the property is compliant.

While the Act has not brought in any new obligations, there are two potential pitfalls you need to be aware of:

  1. If a new regulation were to come into effect that legally impacts on the condition of a property (as defined in the new Act) a property could become 'unfit' by default, even if there hasn't been any actual decline in the condition.
  2. If a property that is currently let to a tenant is found not to be up to standard, there may be circumstances in which the tenant would not need to give notice to leave, depending on the defect.

Importantly, the clarification of existing responsibilities, together with the granting of additional powers for tenants to hold landlords to account, means it is crucial you really understand what 'fit for human habitation' means.

Key criteria for 'Fitness for Human Habitation'

A current tenant may not have complained about or reported any issues, but in order to ensure a property is legally compliant and you are able to grant a new tenancy, you must ensure it meets certain specific criteria, as set out in section 10 of the Landlord and Tenant Act 1985.

Remember that - particularly in the case of properties that are licensed or registered with the council - you could get a visit from an inspector at any time, so you need to be as certain as you can that your buy to let is always on the right side of the law.

Here are the key criteria the property must satisfy:

  • The building cannot be considered neglected, in a bad condition or unstable
    Providing you had a building survey when you bought the property and have not allowed it to fall into disrepair since then, the structure should be stable. If there are any signs of cracking, either internally or externally, you should have a surveyor inspect it immediately. Builders fix work once the problem has been identified, so a surveyor is essential.
  • There must not be a serious problem with damp
    Damp and mould are two of the most commonly reported problems in rented properties, so you need to know what causes them and what you should do to rectify any issues. There are three main types of damp:
    1. Rising damp, where water comes up from the ground. This affects the bottom part of a property, up to about a metre, and in most cases can be fixed by installing a damp-proof course. That should then last and protect the property for 25-30 years.
    2. Penetrating damp, where there's either an internal leak or water gets in from the outside, usually as a result of damaged brickwork, degraded window seals or roof issues. Damp patches on walls or ceilings should give you an idea of where the problem is stemming from. Secure a damp specialist to diagnose the problem and check you have the right insurance in place to protect you. Our Landlord Buildings policy covers you for damage caused by escape of water, as standard.
    3. Damp caused by condensation, which forms on windows, walls and ceilings when warm air collides with cold surfaces or there is too much humidity in a property. It runs down the surface and collects in pools. If it's not dealt with, it will turn into mildew (small black spots), which can then grow and spread as mould.

If you don't eliminate dampness and mould at an early stage, they can spread widely, damaging furniture and belongings. More critically, excess damp can lead to dust mite infestations and the allergenic proteins produced by the mites' faeces can lead to your tenants suffering allergic reactions, asthma attacks and other respiratory problems. In the most severe cases, a tenant could make a personal injury claim against you for their physical suffering.

  • There must be enough ventilation
    Given that tenants often fail to open windows and use extractor fans, it's worth considering installing an automated ventilation system. You can have units fitted that gently and continuously circulate fresh air throughout the property, which can dramatically reduce the likelihood of condensation and mould forming.
  • The heating system must be adequate
    If a property becomes cold, it can easily become damp and the fabric can start to degrade. More importantly, your tenants must not be subjected to excess cold, so you must ensure there is an appropriate heating system and that it is maintained in good working order.

    If the property has gas central heating, the annual gas safety check should ensure the boiler is working effectively, but you should also ask the plumber to flush the system and ensure the radiators are bled periodically. Bear in mind that our Landlord Buildings Insurance includes boiler cover as standard. If it is electric heating, radiators should ideally be modern, energy efficient and thermostat controlled.
  • While the current requirement is that the EPC rating for new lets is a minimum of 'E' (for existing tenancies from April 2020), that is likely to be upgraded to 'C' in the future. Doing all you can to ensure you property is well insulated and as energy efficient as possible today will not only future-proof you for new EPC legislation but it will help ensure that the heating is affordable for tenants and they are easily able to stay warm and comfortable – and afford your rent.
    Read more about the EPC rating rules here.
  • There must not be a problem with the supply of hot and cold water
    In particular, you must take steps to eliminate the risk of exposing your tenants to legionella bacteria. If the bacteria is inhaled via water droplets, it can cause Legionnaires' disease, a potentially fatal type of pneumonia. This bacteria is able to form where the water temperature is between 20 and 45 degrees celsius and nutrients such as sludge, scale and rust are present.

    In most occupied domestic properties, the risk is already low, as the hot and cold water are usually used regularly, which keeps the supply moving. If your property has a combination boiler and electric showers, the risk is further lowered because water is not being stored.

    Other steps you can take to minimise the risk of legionella bacteria forming:
    • Flush the system between lets
    • Avoid debris getting into the system, e.g. by making sure any cold water tanks have well-fitted lids
    • Set the temperature of the hot water cylinder to ensure water is stored at 60°C
    • Remove any redundant pipework
  • The drainage and lavatories must be in proper working condition
    Blocked drains and toilets are a common problem in rented properties – almost always caused by tenants not using them properly. While you may wish to charge the tenant for repairs, it is nevertheless your responsibility to ensure the sanitation system is in good working order.
  • It should not be difficult to prepare and cook food or wash up
    The law requires you to provide your tenants with at least one sink where they can do dishes and wash up. While other kitchen facilities are not specified for unlicensed properties, in order to ensure tenants can easily store, prepare and cook food, you should aim to provide as a minimum:
    • Hob, grill and oven
    • Worktop
    • Refrigerator with freezer unit
    • Storage cupboard
  • The property should be free from all the other hazards set out in the Housing Health and Safety (England) Regulations 2005 as specified in the Housing Health & Safety Rating System (HHSRS):
    • Excess heat
      • - Exposure to things like asbestos, carbon monoxide, lead etc
      • - All gas equipment must be safely installed and maintained by someone that is Gas Safe Registered. An annual check must be carried out to secure a Gas Safety Certificate.
      • - Volatile organic compounds
    • A lack of adequate space for living and sleeping. Note the new minimum room sizes for HMOs that came into force in October 2018.
    • Entry by intruders
    • A lack of adequate lighting – particularly natural light
    • Exposure to noise
    • Falls and trip hazards associated with washing facilities
    • Electrical hazards. Electrics must be safely installed and maintained, ideally by someone who is Part P registered and belongs to NAPIT, NIEIC or ECR.
    • Fire and smoke

This list goes on, so do make sure you are clear on how to keep on the right side of the law.

Ensuring the property remains fit for habitation

When the tenant moves into the property, you or your representative should explain:

  • How to correctly and safely use equipment, facilities and services provided so that they remain in good working order
  • What action to take in case of an emergency, such as a fire or flood
  • The importance of reporting any issues as soon as they arise, such as a blocked toilet, leaking pipe, damp & mould or loose carpet.

Remember that under the Deregulation Act, you must respond to tenants' requests for repairs and carry out those necessary repairs within a reasonable timeframe.

Then regular periodic inspections of the property – ideally once every 3-6 months – should ensure you pick up any problems or potential hazards that the tenant might have missed or simply not reported so you can put them right before they become bigger issues.

Make sure you inspect both the inside and outside of the property, looking for wear and tear and making sure it is wind and watertight. This is particularly important before and after winter, when the property is most vulnerable to damage.

Outside, check:

  • There are no cracks in the brickwork
  • Guttering and drains are in good condition
  • There are no slipped or missing roof tiles
  • The chimney breast and flashing are sound
  • Windows and doors close properly with no gaps.

Inside, look out for:

  • Signs of condensation and mildew
  • Carpets coming loose or flooring lifting
  • Any dripping or leaking sanitary fittings
  • Whether the property feels warm enough.

Potential penalties if you fall foul of the law

If your tenant uses their new powers to take action against you in court and the court subsequently finds in favour of the tenant, they may require compulsory improvement to the condition of the property and/or that you pay compensation to the tenant.

Currently, the level of compensation that can be awarded to the tenant is at the discretion of the judge, who will take into account:

  • the perceived harm inflicted on the tenant
  • the longevity of the issue
  • the severity of unfitness in the property.

You may also be ordered to pay the tenant's legal costs.

If your tenant has raised an issue with the local council, or a council representative has visited the property themselves in the course of making checks and found that it is not up to standard:

  1. They are likely to hand out an 'improvement notice', requiring you to make repairs or upgrades
  2. If you don't comply with that notice, they can fine you up to £30,000 without having to take you to court.
  3. If the matter is serious enough, they could also put you on the national 'rogues database' and issue a banning order, preventing you from letting property.
  4. In the worst cases of a property being considered unfit for habitation, the council could make a prohibition order, restricting access to all or part of the home, or even order its demolition.

Make sure you're covered if things go wrong

No matter how well you look after your property, accidents happen and sometimes damage will occur. That's why it's important to have landlord insurance for the building, décor, fittings and any contents you have provided, so you're not left out of pocket if something goes wrong.

Our award-winning Landlord Insurance allows you to cover buildings and contents either separately or under the same policy.

Plus, our Landlord Emergency add-on covers you if there's an emergency at your rented property, such as the failure of the main heating system, a rodent infestation, damage to the plumbing system, or a smashed window that leaves the property unsafe.

Landlord Insurance Kate Faulkner
Kate Faulkner

Kate Faulkner
Added: 23 Oct 2019