With thanks to a student reader of the text for bringing it to our attention, this update concerns the Homes (Fitness for Human Habitation) Act 2018. The Act came into force 20 March 2019. Unusually, it was a private member’s bill, introduced by Karen Buck MP in 2017 following two earlier unsuccessful attempts (for more on the Act’s passage through Parliament, see here). The new legislation is relevant to contaminated land liabilities around leases, discussed in the text at paras. 18-38 to 18-51.
The Act amends certain sections of the Landlord and Tenant Act 1985 and introduces new provisions for tenancies in England. It applies to common residential agreements, including new tenancies of a term of less than 7 years granted on or after the commencement date (section 9B).
Where the Act applies, a new section 9A(1) implies a covenant by the landlord that the dwelling: a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease; and b) will remain fit for human habitation during the term of the lease.
The landlord cannot contract out or impose a penalty on a tenant for relying on the covenant (section 9A(4)). If the dwelling forms only a part of the building – as with flats – the obligation extends to any common parts in which the landlord has an estate or interest (section 9A(6)). Where a tenant alleges that the landlord is in breach, a court may order specific performance of the obligation (section 9A(5)).
A number of scenarios are excluded from the covenant. For example, it is not to be taken as requiring the landlord to carry out works or repairs resulting from the tenant’s failure to use the premises in a tenant-like manner; or as requiring the landlord to rebuild or reinstate the dwelling in the case of destruction or damage by fire, storm, flood or other inevitable accident (section 9A(2)(a)-(b)).
Fitness for human habitation is defined by an amended section 10. In determining whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of a number of matters listed in section 10(1). It will be unfit for human habitation if it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.
The matters listed in section 10(1) include repair, stability and freedom from damp. They also include, in relation to a dwelling in England, “any prescribed hazard”. A prescribed hazard is “any matter or circumstance” amounting to a hazard currently prescribed by regulations (section 10(2)). Schedule 1 to the Housing Health and Safety Rating System (England) Regulations 2005/3208 currently prescribes 29 matters and circumstances. Some of these are of potential relevance to contaminated land: for example, the ingestion of lead (para. 7), exposure to asbestos fibres or manufactured mineral fibres (para. 4), and exposure to volatile organic compounds (para. 10). A hazard, in turn, means any risk of harm to the health or safety of an actual occupier of a dwelling or HMO which arises from a deficiency in the dwelling or HMO or in any building or land in the vicinity (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise): see section 10(3).
Accordingly, the key question is whether the condition of a dwelling means that it is not reasonably suitable for occupation. A range of factors are relevant in answering that question, including prescribed hazards which amount to a risk of harm to a tenant’s health or safety.
The new provisions would not be appear to have any direct impact on the potential liabilities of landlords and tenants under Part IIA of the 1990 Act. The position remains as set out in the text (para. 18-38 footnote 65). If Part II A applies, both the landlord and tenant may potentially attract Class B liability as owner and occupier; but where the tenant is paying a rack rent, the Guidance provides that he or she will be excluded, leaving the landlord solely responsible (para. 7.78(b) of the Guidance).
Nonetheless, the new provisions are likely to be an important tool for tenants. They go further than the repairing obligations typically relied upon in residential properties: for example, those implied by section 11 of the Landlord and Tenant Act 1985. They do not face the same limitations as repairing covenants, such as extending only to damage to the structure of the building, as discussed at para 18-41 of the text.
While the focus of the Act is on the problems generally faced by residential tenants, some of the prescribed hazards in section 10(1) will be “substances” within the meaning of 78A(9) of the 1990 Act. Where these hazards amount to a risk of harm to the health or safety a tenant, and the dwelling is not reasonably fit for occupation, the Act will enable the tenant to seek an order for the landlord to remedy the problem.
These new provisions will undoubtedly be the subject of litigation, and it may be some time before their precise scope becomes clear. But tenants will be able to rely on their landlord’s duty to provide a home which is fit for its purpose – human habitation – and so avoid stretching the meaning of other obligations, such as the covenant of quiet enjoyment discussed at para 18-50 of the text.
Text references paras. 18-38 to 18-51.