Homes (Fitness for Human Habitation) Act 2018

Commentary on provisions of Act

Section 1: Fitness for human habitation

8. Section 1(1) provides that the Landlord and Tenant Act 1985 ("LTA 1985") is amended as follows.
9. Section 1(2) amends section 8 of the LTA 1985 to apply only to Wales.
10. Section 1(3) inserts a new section 9A as described below.

9A Fitness for human habitation of dwellings in England

11. Section 9A(1) introduces an implied covenant by the landlord into a lease for the dwelling that the dwelling:
    1. is fit for human habitation at the time the lease was granted;
    2. will be kept fit for human habitation during the term of the lease.
12. Section 9A(2) sets out certain exceptions to the application of the implied covenant, in that it does not require the landlord to:
    1. carry out works or repairs for which the tenant is liable because of:
       1. the duty of the tenant to use the dwelling in a tenant-like manner, or
       2. because there is an express covenant in the lease which requires the tenant to use the dwelling in a tenant-like manner.
    2. rebuild or reinstate the dwelling where it has been destroyed or damaged by fire, storm, flood or other natural occurrence;
    3. keep in repair or maintain anything which the tenant is entitled to remove from the dwelling;
    4. carry out any works or repairs to the property which would result in the landlord breaching any of their statutory obligations under other provisions;
    5. carry out works or repairs to the property which would require the consent of a superior landlord or other third party, provided that such consent was requested but not obtained.
13. Section 9A(3) provides that, in addition, the implied covenant does not impose on the landlord any liability where the property is unfit for human habitation where the unfitness is wholly or mainly because of:
    1. the tenant’s own breach of the implied covenant, or
    2. disrepair which the landlord is not required to make good because of an order made by the county court.
14. Section 9A(4) states that any provision of a lease or any agreement relating to a lease is void where that provision attempts to:
    1. exclude or limit the obligations of the landlord under the implied covenant; or
    2. authorises any forfeiture or imposes on the tenant any penalty, disability or obligation in the event of the tenant enforcing their rights under the implied covenant introduced through this section.
15. Section 9A(5) clarifies that where in any court proceedings, it is alleged that a landlord is in breach of their obligation to keep the property fit for human habitation, at the start of and throughout the tenancy, the courts may order specific performance of that obligation.
16. Section 9A(6) states that the duties of the landlord or the lessor extend to common parts of the building where they have an estate or interest.
17. Section 9A(7) clarifies that in a lease of property to which section 9A applies, there is an assumed agreement by the lessee allowing the lessor (or a person authorised by the lessor in writing) to enter the dwelling for the purpose of inspecting its condition and state of repair.
18. Section 9A(8) provides that the landlord, or someone on their behalf, may have access to the property to view its state of repair only if notice is given to the tenant and access is sought for a reasonable time of day.
19. Section 9A(9) clarifies the definitions of the terms "common parts", "lease", "lessor" and "lessee" for the purposes of the provision.

9B Leases to which section 9A applies

20. Section 9B(1) states that the inserted section 9A of the LTA 1985 ("section 9A") applies to a lease under which a dwelling is rented out wholly or mainly for human habitation and:
    1. the term of the lease is less than 7 years, or
    2. the lease is for a secure, assured or introductory tenancy for a fixed term of 7 years or more.
21. Section 9B(2) provides that section 9A does not apply to any lease of a type mentioned in section 14 of the LTA 1985.
22. Section 9B(3) states that except as specified in section 9B(4), (5) and (6), section 9A does not apply to a lease granted:
    1. before the commencement date of that section, or
    2. on or after that date, where the agreement was entered into, or an order of the court made, before the commencement date.
23. Section 9B(4) provides that section 9A makes provision in relation to a periodic or secure tenancy that is in existence on the commencement date and provides that for such tenancies:
    1. the requirement to ensure the property is fit for human habitation at the time the lease is granted or when it begins is instead a requirement to ensure that it is fit at the time that begins 12 months after the coming into force of section 9A; and
    2. imposes the covenant to ensure the property is kept fit for human habitation only from 12 months after the coming into force of section 9A. This allows time for compliance in relation to existing tenancies.
24. Section 9B(5) provides that section 9A applies to a periodic or a secure tenancy that comes into existence after the commencement date on expiry of a lease granted before that commencement date.
25. Section 9B(6) provides that where a lease for a fixed term:
    1. is granted or renewed before the commencement date of this legislation, and
    2. is renewed for a further fixed term after that date;

    the renewal referred to in paragraph (b) is to be treated as a grant of the lease after that date, at which point the covenant will apply.

26. Section 9B(7) makes clear that for the purposes of the requirement that a property is fit for human habitation at the start of the tenancy and throughout, it is immaterial:
    1. whether the dwelling is to be occupied under the lease or under an inferior lease derived out of it, or
    2. that the lease also includes other property, which may consist of or include one or more other dwellings.
27. Section 9B(8) provides that in determining for the purposes of section 9B(1)(a) whether a lease is for a term of less than 7 years:
    1. the lease is to be treated as a lease for a term commencing with the grant of the lease;
    2. a lease which can be terminated at the option of the landlord before the expiry of 7 years is to be treated as a lease for less than 7 years;
    3. a lease other than one to which paragraph (b) applies is not to be treated as a lease for a term of less than 7 years if it confers on the tenant an option for renewal for a term which, together with the original term, amounts to 7 years or more.
28. Section 9B(9) provides definitions to apply in relation to section 9B:

• "the commencement date" means the date on which the Act comes into force;
• "secure tenancy" has the meaning given by section 79 of the Housing Act 1985.

29. Section 9C restates section 9 of the Landlord and Tenant Act 1985, which will now only apply in relation to Wales.

Remaining provisions

30. Section 1(4) amends section 10 of the LTA 1985. These amendments provide that whether a dwelling is unfit for human habitation is to be determined with regard to a hazard, meaning any matter or circumstance as prescribed in regulations under section 2 of the Housing Act 2004, and that hazard is defined as in section 2(1) of that Act, omitting reference to a "potential occupier". By virtue of the surrounding provisions of section 10, the dwelling shall be regarded as unfit 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.
31. Section 1(5) notes that in section 39 (index of defined expressions), after the entry in the list for "lease, lessee and lessor (generally)" insert "(in the provisions relating to fitness for human habitation) – section 9A(9)"
32. Section 1(6) notes that in section 302 of the Housing Act 1985 (management and repair of houses acquired under section 300 or retained under section 301), in paragraph (c)-for "section 8" substitute "sections 8 and 9A", and for "does" substitute "do".