UNFIT – Fitness For Human Habitation Act 2018

by Property118.com News Team

10:26 AM, 31st December 2018
About 5 months ago

UNFIT – Fitness For Human Habitation Act 2018

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UNFIT – Fitness For Human Habitation Act 2018

Lets get straight to the point, as there’s only 5 pages to this Act. Click Here

This was a clever proposition by Karen Buck MP to put to Landlord Associations, in that how could ‘Professional’ landlords oppose a bill to stop rental properties that weren’t ‘ fit for Human Habitation.’

Short answer is they, and no landlord other than a Criminal one could.  However,  that is far, far from what the legislation actually lays down and it would appear, not to have been challenged or raised by ANYONE.

The first page gives some mechanics in that this Act places itself after Section 9 of the Landlord and Tenant Act 1985; to be known as Section 9A Fitness for Human Habitation of Dwellings in England.

FFHH 2018,  Sec 1 (3) (2) (a) (1)  [ the indexing is a dogs dinner ]  repeats the duty of the lessee to act in a tenant-like manner (of course they all do don’t they – no criminal or Rogue tenants, well not to be found such in court anyway) and  subject to this Act.

The second para 1 (3) (a) repeats similarly in that the lessor’s covenant to keep in repair, is not bound by lessee’s own breach.

Sec 1 (7) repeats the lessors rights to inspect the property with 24 hours notice (we all know that happens too)!

Various other superflous legalese until the last page, 5 where the briefest of mentions are made to –

What actually constitutes a property being ‘Unfit for Human Habitation’  which in my humble, non-legally qualified opinion, is nothing of the sort, and likey to be found in many properties, rental or privately owned!

The actual substance – effect of this 5 page piece of legislation, is to insert at paragraph 10 of the L and T Act 1985 ( innocuously ) after… ‘ facilities for the preparation and cooking of food and for the disposal of waste water ‘ ~  ” ANY PRESCRIBED HAZARD ”

FFHH defines Prescribed Hazard, as meaning prescribed by Section 2 of the Housing Act 2004 – which are, wait for it – of such seriousness as to warrant the title ‘Fitness for Human Habitation’  –  Category 1, OR 2  Hazards under HHSRS!

So what is a Cat 1 or 2 hazard – Our ‘friends at that nice alledged charitable organisation, ‘No Shelter’, define common hazards you can complain about as:

  • Damp and Mould growth
  • Excessive cold
  • Overcrowding
  • Risk of falling on stairs, floors or outside paths
  • A faulty gas boiler
  • Fire risks
  • Dangerous electrics

A google search for what is a Category 2 hazard is defined as ‘a hazard that is less serious or urgent’ (hardly something to make a house Unfit for Human habitation).

Damp and mould can be caused by tenants drying clothes and not ventilating a property, but proving it is another thing.

A factor of the Housing Health and Safety Rating System is that every one of the 29 potential hazards, has a heallth implication understandably, hence HHSRS title – hold onto that Health implication for later Legal Aid input below:

Legal Aid is only allowed for Re-possession of a rented home, injunctions relating to harassment in the home, anti-social behaviour cases in the County court (My company is dealing with quite an horrendous example at the moment where his legal aid solicitor has entered a not guilty plea, delaying the injunction past the Section 21 hearing date) and – DISREPAIR but only regarding removal or eradication of serious risk of harm to the health and safety of the occupiers. Claims for Damages are outside the scope of Legal Aid, save as a Counter claim in Possession proceedings!

Legal Action Journal, December 2018 heavily features Legal Aid (as it frequently does) Page 4 is about the All-Party Parliamentary group (APPG ) on Legal Aid chaired by a grinning, none other than Karen Buck MP who commented that a Labour government would review the Legal Aid means test and restore legal aid for ALL housing cases. Labour plans for Law centres to have a major new role (read legally force landlords to house tenants free, regardless).

Another article mentions Legal Aid having a special debate in parliament last month where chair of the justice committee, Bob Neill Conservative MP for Bromley said the pendulum had swung too far in reductions to legal aid. He expressed concerns about legal aid firms finacial viability (wipe the tears from your eyes) citing a Solicitors Regulation Authority survey to which HALF of 2000 firms questioned said they were at risk due to legal aid cuts. This does make you wonder what kind of tax-payers money is being spent on solicitors defending all sorts.

Back to HHSRS – Health implications: It is not rocket science to see how there will be a surge in HHSRS claims for disrepair, given that every one of the 29 hazards, has by definition H ‘Health’ SRS contained therein.

Is it a coincidence that a solicitor offered to write pro-bono, the FFHH legislation, so weakly defining a breach of fitness that seems to equal ‘Unfit for Habitation.’ Surely a patch of mould, spindle missing from stairs, loose stair carpet etc isn’t a House Unfit for Human Habitation!     With Legal aid funding to delay Possession proceedings and claim compensation from landlords to off-set or even Exceed rental default will surely be the result.

I find it inconceivable that Landlords organisations, other landlord websites and in fact virtually everyone has rounded to support the FFHH without scrutiny of its weak means to prevent very strongly stated aims that actually contradict.

It won’t be Criminal landlords that will suffer the consequence of renting out Unfit homes, it will be the landlords of criminal tenants who happen across a No-win No-fee solicitor.  They’re already out there advertising their services for deposit contraventions and it won’t be long before adverts appear for FFHH disrepair cases.

Simply put, the legislation means a Tenant can sue a landlord for any defect that constitutes a Cat 1 OR 2 hazard, and is highly likely to be Legal Aid funded to do so.  Likely a coincidence that the Pro-bono author of the Bill is a legal aid practitioner?

Chris

Courtesy of – Possession Friend.uk



Comments

Monty Bodkin

11:52 AM, 1st January 2019
About 5 months ago

Reply to the comment left by Monty Bodkin at 31/12/2018 - 13:51
A more user friendly guide for checking legal aid eligibility;

https://www.gov.uk/check-legal-aid

Giles Peaker

14:58 PM, 1st January 2019
About 5 months ago

Reply to the comment left by Recardo Knights at 01/01/2019 - 11:26
In those circumstances, there are two options - either there is a 'new' event - like a slow hidden leak, for example - or the way the tenant is using the property is causing condensation mould.

If it is the former, then the landlord is liable (both in disrepair and under the forthcoming 'unfitness' term, if the problem is severe enough). If the latter, then the landlord is not liable under the 'unfitness' term, as anything caused by the tenant's 'untenant-like' conduct is excluded.

So if it is the tenant's actions, there will be no liability under the new law. What councils might do or require under Housing Act 2004 is a separate matter.

Giles Peaker

15:04 PM, 1st January 2019
About 5 months ago

Reply to the comment left by Luke P at 01/01/2019 - 01:35
Luke - happy new year.

If someone writes an article getting the new law a bit wrong, I'm very happy to correct them, in a friendly way. If someone writes a diatribe which not only gets the new law wrong but makes a series of wholly wrong personal allegations about my involvement, motivations and aims - so a personal attack on me - I am less polite and friendly.

I can assure you I won't benefit from the Act through legal aid funding. And any legal aid housing solicitor will tell you they are not crying out for more work!

Seething Landlord

18:10 PM, 1st January 2019
About 5 months ago

Reply to the comment left by Luke P at 01/01/2019 - 01:35I assume you are aware that the National Landlords' Alliance is totally in favour of this legislation - see their blog and tweets on the subject.

H B

20:29 PM, 1st January 2019
About 5 months ago

"Surely a patch of mould, spindle missing from stairs, loose stair carpet etc isn’t a House Unfit for Human Habitation!"

I would have thought that a loose stair carpet is potentially lethal so would need repairing immediately.

Annie Landlord

13:18 PM, 2nd January 2019
About 5 months ago

Reply to the comment left by H B at 01/01/2019 - 20:29
As I understand it, the Act does stipulate that in order to bring a claim, the tenant must be able to show they have notified the landlord of the fault/issue and that the landlord has not responded to rectify the fault in a reasonable time frame. So efficient documentation will be vital for both sides.

MartinO

18:38 PM, 3rd January 2019
About 5 months ago

I have a property which was tenanted by the same tenant for over 5 years and they gave notice, great tenants who left it in great condition but before we re-advertised it we did some upgrading and modernising as we often do after a long term tenancy. A new tenant moved in and within 6 months she started to complain about damp and mould in the front and rear bedrooms. We inspected and found what I considered to be typical "condensation mould". We treated it but explained to the tenant the importance of keeping the property at an ambient temprature during the winter months (15 degrees) and all the usual information about venting etc. We did some checks on the flat roofs, gutters, drain-pipes, lead flashings etc to show her that we were taking things serious and we even did some pointing to the front elevation which wasn't absolutely necessary but was near enough to justify it, just in case this was the cause of the problem, which I suspected it wasn't. After a couple of months I received a notification letter from Leeds CC because she had raised the issue with them (usual story, children with asthma and bad health etc, the fact that she smoked had no bearing on this of course!). She had never come back to me to say that the problem was still ongoing, so I was flabbergasted to say the least! We had done everything possible and I was convinced the fault was hers, but Leeds Council were firmly on her side. I arranged an inspection to check over all the things previously checked and to be extra sure, I had a damp specialist meet me at the property. Just before I arrived, she sent a text to say that she had to go out and couldn't be at the property to meet us there, so I asked her if it was ok to go in, she said it was and when I went in, she had made a huge mistake! She had left the washing drying on every upstairs radiator and on the bannister rail! I took pictures, the evidence was overwhelming so I put a report together and sent it to her, laying the blame firmly at her feet. I also sent the same report to Leeds Council along with a letter asking for the removal of the notice. They wrote back saying that they could not remove the notice and said that if the tenant chose to continue the complaint, they would have to pursue the matter on her behalf, despite what I had shown them - that's what happens when you're spending other peoples money!
She left three months later and since she left, that property has been rented to the same person for the past three years and I have never received a single complaint about damp from my new tenants!
I'm sure a number of LL's reading this story will have had a similar experience, and there is no particular moral to this story. But what I would suggest, given the constant attack on LL's and the introduction of this new regulation is that you keep a fully documented record of all correspondence regarding repairs, ALWAYS insist that repair issues are put to you in writing and never ever take a verbal report for a repair issue and don't throw away any correspondence between you and the tenant as you might need it someday.
Good luck for 2019, we're going to need it!

Giles Peaker

21:40 PM, 4th January 2019
About 5 months ago

Reply to the comment left by MartinO at 03/01/2019 - 18:38
Hi Martin. It isn't a new regulation, it is a new implied term in new tenancies. There is a specific exemption for the landlord for liability where the unfitness is due to the tenant's un-tenant-like conduct, rather than any issue or defect to the building. So there wouldn't be a claim in the circumstances you describe.

Councils may take a different approach under Housing Act 2004, but that wouldn't mean a case under the Homes (Fitness for Human Habitation) Act.

Tenants or a third party will have to report poor conditions (not just disrepair) to the landlord where the problem is inside the demised property, just as with disrepair, and the landlord will have a reasonable time to remedy them.

That said, keeping records is always a good idea!

Arnie Newington

8:10 AM, 5th January 2019
About 5 months ago

In Scotland we have the repairing Standard and the issue of condensation mould is covered in the easy read notes that are part of the PRT.

As MartinO says condensation mould depends on the tenants lifestyle and LLs have no control over tenants lifestyle.

It would appear that the new legislation is unclear and could potentially be used to punish landlords for issues that are out with their control.

MartinO

9:41 AM, 5th January 2019
About 5 months ago

Reply to the comment left by Giles Peaker at 04/01/2019 - 21:40
Hi Giles, thanks for your reply and clarification. The thing that rankled with me the most was the councils attitude towards me and their apparent "undying support" for the tenant, despite my evidence. In the end, as you point out, they would not have had a case against me or any other landlord in a similar situation, but their approach smacks of anti-landlord biased which all councils practice. This is attitude is the type of thing that we landlords are up against all of the time, and I can fully understand why landlords have simply had enough and are quitting in droves.

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