Government snuck another piece of 1984, legislation onto the statute books recently – THE HOMES (FITNESS FOR HABITATION) ACT 2018. It became law on 20th March 2019 for all new and renewed tenancies and applies to all landlords with properties in the Private Rented Sector (PRS). All tenancies i.e. incl. periodic tenancies, will be covered by the Act.
One would assume that a good landlord (and agent, if one is employed) who maintains their properties to a good standard would have nothing to fear. I can hear many landlords saying “I look after my properties, maintaining them to a good standard”. Don’t be complacent; as with most things, the ‘devil is in the detail’.
This Act amends the old Landlord and Tenant Act 1985 and the Building Act, and affects:
- General repair work
- Structural stability
- Internal arrangement
- Natural lighting
- Amount of ventilation
- Quality of water supply
- Drainage and sanitary conveniences
- Facilities for preparation of food and cooking
- Disposal of waste water
- Hazards (as defined by the Act)
Under the Act a significant defect in any ONE of these areas will render the property ‘unfit’. For single occupier tenancies of a dwelling, or joint tenancies, the tenant(s) is responsible for reporting a problem. The landlord (or agent) MUST then rectify the problem within a reasonable time frame. What the definition of ‘reasonable’ is will depend on the circumstances, but of course this may result in some uncomfortable exchanges where the tenant and landlord have differing views on timescales. Aggrieved tenants who believe the problem has not been dealt with promptly will be entitled to commence action for breach of contract. The landlord may be forced to carry out improvements and provide compensation to the tenant. The Act gives no figures for the compensation. It will depend upon a judge’s opinion on the severity of the issue.
Where arrears exist, any action for recovery of the arrears, or for possession under a Section 8 Notice, are likely to be suspended at best, or fail completely, where a tenant commences action for breach of contract under this Act.
Where a property is a House in Multiple Occupation (HMO) the responsibility for identifying the defect moves immediately away from the tenants, to the landlord (or agent, if one is employed). The implications here are significant. An HMO is any property occupied by 3 or more persons who not from the same family. This could be properties where there are genuinely 3 or more joint tenants (sharers – professionals or students) as well as properties let on a room-by-room basis, and properties occupied initially by two sharers but where the tenants have allowed a third or fourth person to move in – girl or boy-friends, lodgers or just ‘a mate between properties’, where the landlord has raised ‘no objection’.
In the case of HMO’s the landlord’s obligation is instantaneous. A problem does not need reporting by the tenants; the landlord is expected to know about the defect, and remedy the problem in a reasonable time! Allowing a defect to go unreported for a week or two could give mischievous tenants an opportunity to seek compensation or delay having to vacate under Notice to Quit.
The Act does not make the landlord responsible for repairing damage incurred by the tenant. The tenant cannot ‘create’ a defect in order to claim compensation. Proving how a defect occurred is, however, often an issue. Many of The Property Ombudsman’s dispute resolutions are over disputes for defect purported to have been caused by departing tenants!
Now, more than at any time in the past, landlords must ensure they (or their agent) inspect their properties regularly. I anticipate this will be defence against any claims for compensation. The landlord will need to be able to prove they have made such inspections i.e. are diligent and attentive landlords, and actively seek to identify and deal with defects. Such frequent checks will also ensure that a property has not, unbeknown to them, ‘morphed’ into an HMO. I am aware of a number of agents who state on their advertising that they inspect properties regularly, but do they? Does the agent have an audit trail of the inspections? Do they send the landlord a report after each visit? Landlords who undertake their own inspections should adopt additional documentation recording their visits and findings. At Moores, we have a dedicated Property Inspector who visits every property once a quarter, ensuring over-occupancy doesn’t occur and reporting any defects or potential issues back to our Maintenance Team, as well as our clients. Landlords using other agents need to review whether the service on offer is suitable for their needs.