As a chartered building surveyor; over the past two years, I’m increasingly becoming involved in many and various legal cases raised by tenants against landlords, specifically local authority clients, operating as residential landlords. This increase in quantity has to have occurred for a reason and so Lantern Building Consultancy’s Martin Smith investigates why….
The Law / Landlord Obligations
In context, housing disrepair is generally covered under law by s11 Landlord and Tenant Act 1985 and section 4 of the Defective Premises act 1972.
Section 11 of the Landlord and Tenant Act 1985 relates to leases of less than 7 years and tenancy agreements, but does not apply to licenses to occupy. Historically, s11 states that the landlord needs to do some essential repairs on the property; specifically concerning a limited number of elements to the house in order to maintain the health, safety and well-being of the residents.
Those specific elements mentioned in s11 are; the structure (including the walls, floors, windows and walls, including plaster) and exterior of the house (including gutters, pipes and drains) and all installations within the house concerning the supply of water, gas, electric, sanitation, heating and hot water. The landlord is required to keep them in repair and working order; excepting where damage has been caused by the tenant.
The Defective Premises Act 1972 places a duty of care on the landlord to anyone affected by the defect or disrepair in the premises and positive obligation on the landlord to conduct the works.
On 20 March 2019, The Homes (Fitness for Human Habitation) Act 2018 (“H(FHH)A”) came into force in England, which alters this long-standing situation. This law applies to all new leases, signed after the date of its introduction, but on 20 March 2020 it became enforceable on all applicable residential tenancies, including those signed prior to the date of its introduction.
The H(FHH)A adjusts the 1985 Act to add a further requirement on the landlord to ensure that the property is “fit for human habitation”. Failure to do so could lead to Courts being able to award reimbursement of rent to the tenant and also to impose fines against any landlords not meeting the ‘fitness for habitation’ standard.
Uncertainty Arising
The introduction of this new law (as when all new laws are brought into force) creates uncertainty as to how it should be interpreted and explains in part the reason as to why the number of cases has risen recently;
1) The definition in the new law as to what a constitutes a property being “unfit” for human habitation is somewhat subjective;
2) The increased list of items for which the landlord has repairing liability creates more topics of discussion between the parties;
3) The new law has recently come into effect and so tenants are endeavouring to try and test the uncertainty and specifically to investigate the possibility of receiving financial compensation; and
4) Various “no win – no fee” lawyers operate in this field and remove the financial barriers to raising legal claims.
Why Uncertainty?
In addition to the elements held as the responsibility of landlords under the 1985 Act (listed above), s10 lets us know the standard that these elements should be in in order for the landlord to be compliant. The landlord therefore needs to ensure that the house is of a standard that is in repair, stable, free from damp, of suitable arrangement and have access to natural lighting, ventilation, water supply, drainage, sanitary conveniences, facilities for preparation and cooking of food and for the disposal of waste water.
Significantly, the H(FHH)A alters the 1985 Act by adding an obligation on landlords in England to consider the homes’ fitness in relation to “any prescribed hazard”. This relates to a list of 29 hazards referred to in section 2 of the Housing Act 2004 (for those with long memories this is the Housing Health and Safety Rating System (HHSRS) adopted by many a social housing provider at the early part of the early century). The implication of the H(FHH)A is therefore that it adds 29 additional things that a tenant may claim are unsuitable, resulting in their home becoming ‘unfit for habitation’ and therefore items to which they may seek compensation for.
The 29 items listed on the HHSRS list (and therefore ‘hazards’ that need considering under the H(FHH)A) include things such as; damp and mould growth, excess cold or heat, asbestos, carbon monoxide, overcrowding, security, noise, electrical hazards, falling hazards, amongst others. A clear definition you may think, but the Act then states “… if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.” So, the assessment of whether a hazard makes a home unfit for human habitation becomes a subjective matter.
In this situation, landlords are likely to suggest that any specific defect does not make the house unfit for habitation, whereas the tenants are likely to argue that it does. Uncertainty can therefore ensue.
Uncertain Definition
As the H(FHH)A is relatively new, there are extremely limited cases relating to interpretation of the law and therefore offer limited help to us at this stage. That said, the Defective Premises Act 1972 does deal with the definition as to what comprises “fit for habitation”. This Act suggests the property to be “fit for habitation if it can be occupied for a reasonable time without risk to the occupants’ health and safety, or without undue inconvenience or discomfort”. This seems to be a low bar to achieve.
The HHSRS rating system has been in operation since its introduction via the Housing Act 2004 however and that Act suggests that to evaluate fitness for habitation that there needs to be an assessment of the whole house, considering all of the 29 hazards. In the revised 85 Act however, the definition of ‘unfit’ appears to suggest that such a risk assessment concerning all 29 items is not required, rather that individual hazards can be considered alone. This counters the intended application of those 29 ‘hazards’ under the 2004 Act, which may now be applied in a completely different way to that originally intended. Does this mean that a full house risk assessment requires being considered in every housing disrepair case? I would suggest not, given that such an approach would significantly increase the workload and, in the most part, be superfluous. A question therefore remains as to how to approach the new requirement?
Reaction
Whilst the implementation of a new piece of legislation always brings some uncertainty as to its implementation, the introduction of the H(FHH)A coincided with both Brexit and the Covid pandemic, both of which have resulted in economic difficulties for some. The opportunity was gratefully received by some in the legal profession, increasing their online and social media advertising presence and offering “no win, no fee” instructions to tenants potentially suffering from some economic difficulties and the removal of the financial barriers to raising a claim have consequently led to an increased number of claims in recent months. This may be a good thing, as it hold landlords with poor properties to account.
That said, the quality of the claims is somewhat questionable and they usually contain non-specific, exceedingly generic and superfluous claims for remedy of issues that either the landlord is not responsible to perform or that the tenant’s themselves have caused. One would think that the solicitors would review the claims and contents prior to serving claims, rather than regurgitating the tenant’s views, but this is becoming increasingly rare, perhaps as a result of the solicitors not wishing to expend a lot of time on each claim, given their ‘no win, no fee’ commission.
Application in Practice
The first consideration of a claim to make is the establishment of whether there is a breach of the 1985 Act or not. This will include review of each individual potentially deficient portion of the house, with specific consideration of the age, character and location of the house; which itself will advise as to what standard of repair and condition the elements of the house are expected to be in. This also includes consideration of the 29 HHSRS hazards, however some of these items cannot be assessed in such a scientific way.
For example, in assessing if the security of a house is not sufficient (i.e. one of the 29 hazards), such as to render the house habitable, there is no benchmark measure as to what constitutes a satisfactory arrangement. Of course, if the home has no locks on any doors or windows, this is unsuitable, however there is no benchmark to identify where the security arrangements pass from being unsuitable to suitable. That much is subjective and will differ from house to house. As you can see, the assessment of these items is much more difficult to determine than something more objective, for example if a roof is in repair or not, an item previously considered by the original 1985 Act.
As mentioned above, the HHSRS assessments can be applied to assess ‘fitness for human habitation’, but this requires complicated calculations, assessing the whole of the home before awarding the whole a hazard rating to result in a home being ‘fit’ or ‘unfit’. As you can see, this application of the HHSRS rating therefore to the Landlord and Tenant Act 1985 is not so straight forward. Remember, that the home can be found to not be fit for human habitation “… if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.” This assessment is therefore difficult to make on the basis of only individual hazards being present, which is often the case. Quite confusing, I’m sure you’ll agree. Indeed, if 28 or the 29 hazards are found to be appropriate and only 1 considered inappropriate, would this be sufficient to render the whole of the house ‘unfit for habitation’. It could be suggested not.
Ultimately, it is for the courts to decide on a case-by-case basis, but if resulting in court action, the claim value, particularly the claimant’s attempt to recover legal costs could be of a very significant value indeed, sometimes dwarfing the overall value of the claim.
In some instances, is not necessarily a surveyor’s role to determine if the home is unfit or not, specifically in regard hazards such as extent of condensation mould, where professional surveyor’s opinion cannot necessarily be given on the health implications of that mould and its effect. The changes therefore mean that solicitors often now require creating specific teams suitable to make or respond to each individual claim. This may not include only surveyors, but acousticians, asbestos experts, heating engineers, fire engineers, etc. and you could therefore say that the H(FHH)A provisions have made the Housing Disrepair Claims more specific and appropriate. That said, they may certainly be more costly and in any event, more subjective than the previous position. This may therefore provide a good indication as to why the numbers of cases have increased in recent months.
If you require further information about housing disrepair claims, assistance on assessing or responding to claims or advice on how to avoid potential claims please contact Lantern Building Consultancy Limited.
