FREE CHAPTER from ‘A Practical Guide to the Homes (Fitness for Human Habitation) Act 2018’ by Brooke Lyne

CHAPTER ONE:
DEFICIENCIES IN THE “OLD” LAW

  1. The starting point is that there is no common law duty on landlords of residential premises to carry out repairs nor to ensure a dwelling is habitable1 unless expressly provided for in the tenancy agreement. Furthermore, at common law there is no implied covenant that residential premises will be fit for human habitation.2 In Robbins v Jones (1863) 15 CB Erle C.J. declared the following:

Fraud apart, there is no law against letting a tumbledown house, and the tenant’s remedy is upon his contract, if any.”

  1. Lawyers have always had to start by considering the express terms of the lease to find out what – if any – repairing obligations fall on the landlord. There are any number of different types of repairing covenants that might appear in a tenancy agreement and the scope and extent of obligations will vary from one lease to the next. In practice, however, the express obligations on landlords in short tenancies tend to be drafted in terms that minimise the landlord’s liability to carry out repairs.
  2. The word “disrepair” is used generically by lawyers to describe claims or issues that involve problems with the state or condition of a property, but the legal definition of this term helps to demonstrate the deficiencies in the common law. Usually a landlord’s repairing obligations under a short lease only arise if there is “disrepair”, which means that the item or issue must be “out of repair” i.e. there has to be some deterioration from its previous condition. If it has always been in that condition or there is an “inherent defect” in the property then, ordinarily, the tenant will have no claim.
  3. The gap in the law is acutely apparent if we consider the problem of condensation damp in residential premises. Condensation damp is rarely caused by “disrepair” to the dwelling (or to the building in which it is situated) but, instead, it is often caused by a design defect in the building which means that condensation damp forms because of an imbalance in the heating, insulation and ventilation in the dwelling. This form of damp, albeit horrible, and in some circumstances, dangerous for occupiers, is not usually actionable “disrepair”. Moreover, the repairing covenant implied into short-term lettings by s.11 of the Landlord and Tenant Act 1985, does not provide a remedy for such condensation damp unless there is actual disrepair.3


The Extinction of s.8 Landlord and Tenant Act 1985

  1. Section 8 of the Landlord and Tenant Act provided (it has been amended by the 2018 Act) that homes needed to be fit for human habitation. It implied two separate, absolute contractual terms into tenancies:
    • That the premises are fit for human habitation on the date of letting;
    • That the premises will be kept fit for habitation, by the landlord, throughout the duration of the tenancy
  1. Prior to the introduction of the 2018 Act, this provision only applied to properties at very low rents. The applicable rents were £80 rent per year in London and £52 per year elsewhere! As such, s.8 had become completely useless.


Other Provisions

  1. Other provisions provided some recourse for tenants in poor standard housing prior to the commencement of the 2018 Act. This book does not attempt to cover them in any detail,4 but by way of summary:
  • Section 11, Landlord and Tenant Act 1985.

This provision imposes an implied term into secure and assured tenancies as well as all tenancies for a term of 7 years or less. The implied term imposed on the landlord is as follows:

(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

(b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and

(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.”

Under s.11(1A) the landlord is also responsible for other areas of the building over which she has an estate or interest. This means that a landlord who owns the whole building cannot escape liability if the cause of the disrepair originates from a part of the building outside of the tenant’s demise. Ultimately, a tenant may bring a claim for breach of contract if the landlord fails to comply with her repairing obligations imposed by ss.11 and 11(1A).

  • Section 4, Defective Premises Act 1972.

This provision imposes a duty on landlords to “take such care as is reasonable in all the circumstances” to ensure that occupiers “are reasonably safe from personal injury or from damage to their property caused by a relevant defect”. This duty only applies when the landlord knew or ought to have known about the defect. It is possible for a tenant to bring a civil claim for breach of s.4.

  • Occupiers Liability Act 1957

Under s.2(1) the “occupier” of land owes a common law duty to ensure that visitors are reasonably safe. A landlord who owns a whole building is treated as being the “occupier” of the retained common parts. This means that the landlord may be liable for injuries that occur as a result of the condition of communal parts of a building. A civil claim under this Act would have to be pursued against the landlord.

  • Enforcement by local authority – Environmental Protection Act 1990

This is not a civil remedy available to tenants, rather, it relates to the enforcement powers of local authorities. A local authority has powers and duties to take enforcement action against a landlord in circumstances where there is a “statutory nuisance”. Tenants are able to invite the local authority to carry out a property inspection in the hope that the authority will take action to require the landlord to carry out works and/or remedy poor conditions.


Summary

  1. The common law is inadequate when it comes to requiring landlords to ensure that residential properties are fit for occupation. There are several statutory provisions that provide some recourse for tenants and occupiers in poor housing, but overall these have provided inadequate protections.

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1See Cavalier v Pope [1906] A.C. 428.

2There is an exception to this. If the property is furnished letting, then there is an implied term that the property will be fit for human habitation at the outset of the letting (Smith v Marrable (1843) 11 M&W 5). The obligation is not continuing and any unfitness that arises during the tenancy will not be actionable.

3Quick v Taff [1986] Q.B. 809

4For that, readers should consult a practitioner text such as Housing Conditions: Tenants Rights, Luba, O’Donnell and Peaker; or Dilapidations, Dowding & Reynolds.