For over four years, Karen Buck MP worked tirelessly to strengthen tenants’ means of redress against landlords who fail to comply with their legal obligations to keep properties, and occupiers, safe.

Her bill was rejected three times by parliament. In the wake of the Grenfell Tower disaster a swift landmark decision was made to pass her bill. On 20 March 2019 the Homes (Fitness for Human Habitation) Act 2018 (‘the Act’) came into force by adding s9A, 9B, 9C and amending s10 to the Landlord and Tenant Act 1985.

Who Is Affected

The Act applies to all residential tenancies granted on or after 20 March 2019 for a period of less than 7 years. From 20 March 2020 the Act will apply to all periodic tenancies that started before 20 March 2019. It also applies to leases defined under s13(1A) (1B) of Landlord and Tenant Act 1985. It should be noted that landlords and tenants are prohibited from contracting ‘out’ of the provisions within the Act.

The ‘FHH Implied Covenant’

A covenant is implied into the tenancy agreement that the property is fit for human habitation and will remain so during its term. This extends to the dwelling and any other part of the building which the landlord has an estate or interest, such as exterior walls and common parts.

It is worth reading s10 Landlord and Tenant Act 1985 which lists the factors the court has regard to, and includes matters of repair; stability; damp; internal arrangement; natural lighting; ventilation; water supply; drainage and sanitation; cooking and water disposal facilities; and any prescribed hazard – any risk of harm to the health and safety of the occupier arising from a deficiency in the building, land or any part of it.

Remedies

Occupiers may claim that the property is unfit and hazardous. The person in occupation is not always the named tenant, but they still have rights under the Act. The landlord is not expected to know of any latent defects on parts where he wouldn’t have immediate access. A notice must be served on the landlord to allow for inspection and repair.  The courts may order that any obligation to carry out repairs do not come into existence until notice of defect is served. Before accessing the property to carry out the repairs, unless it is an emergency, the landlord is to give 24 hours written notice and the visit should be within ‘reasonable’ hours.

Importantly there is no need to provide a notice of defect to a landlord on common parts which are within his control. This particularly affects Houses of Multiple Occupation as the landlord is immediately liable and expected to be aware of the patent defect.

The court has the power to grant remedies to occupiers including specific performance regardless of equitable rule; an injunction to compel works to be done; damages for breach of contract; and repudiation. Damages are assessed on the contractual basis to put the tenant back in the position they would have been in had the contract been performed.

Defences

The FHH Implied Covenant does not require landlords to carry out works where:

• the tenant is contractually obliged to carry out the works;
• rebuilding or reinstatement is required following destruction or damage by fire, storm, flood or other inevitable accident (acts of God);
• the repairs or maintenance are for anything which the tenant is entitled to remove from the property;
• consent of a superior landlord or other third party is required  and the landlord is unable to obtain such consent following reasonable endeavours.

MPs continue their efforts to improve living conditions and we will observe the court’s approach to implementing the provisions with the Act for landlords and tenants alike.

How Can BHP Law Help?

At BHP Law our Dispute Resolution team is experienced in Landlord and Tenant matters. Simply contact the team on 0800 590 019 to discuss with us or arrange an appointment.