Last Updated: November 21, 2023
It should not be news to landlords that Section 11 of the Landlord and Tenant Act 1985 (“LTA 1985”) sets out repairing obligations that apply to landlords of a tenancy granted for a term of less than seven years.
Section 11(1) inserts an implied covenant into such tenancies, which requires the landlord;
(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.
Following the introduction of the Homes (Fitness for Human Habitation) Act 2018 (“HFHHA 2018”), legislative requirements which previously only applied to very low-value tenancies became applicable to any lease of less than seven years to which the Section 11 obligations apply. For all new tenancies, since 20 March 2019, landlords are required to ensure that their properties are fit for human habitation at the start of the tenancy and that they remain fit for the duration of the tenant’s occupation under the tenancy.
There is a list of factors to which the court will have regard when determining if a property is fit for human habitation and they include;
Prescribed Hazards include;
A “hazard” is defined as;
“any risk of harm to the health or safety of an actual or potential 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).”
Section 11 obligations relate to repair, not improvement. As such, there needs to be an element of disrepair such as a broken gutter, causing water to run down the outside wall, which in turn causes damp and mould inside the property. In those circumstances, the landlord must repair the gutter (Section 11(1)(a)) and also address the mould/damp which is caused as a result. Similarly, if there is a breach in a Damp Proof Course that is causing rising damp, the landlord’s repairing obligations arise. But, if there is no Damp Proof Course, due to the age of the property, the landlord does not have to install one under the Section 11 obligations as this would be an improvement.
However, given the changes made by the HFHHA 2018, the requirements on landlords extend beyond those found in Section 11.
The definition of a hazard is any risk of harm and the cause of the hazard includes absence of maintenance or repair, or otherwise. Therefore, the cause of the hazard does not necessarily need to be the fault of the landlord.
Landlords can rely on an exemption from liability if the cause of unfitness is wholly or mainly attributable to the tenant’s breach of their contract, but this will require a determination by the Court at trial. Firstly, to ascertain whether there is a breach by the tenant, and secondly, whether that was wholly or mainly attributable to the unfitness for human habitation.
Historically, ‘tenants’ lifestyle’ was used as a defence to claims where mould or damp were present, but that is increasingly less successful and there has to be a balanced view. Drying clothes indoors is inevitable where there is nowhere outside to do so, or for example, in the winter. Cooking, bathing and breathing are essentials of living and all create moisture. If there are insufficient ventilation installations in the property to expel the moisture then the property may be unfit for human habitation and the landlord may need to take steps to address the issues.
As such, it cannot be said, that by cooking, bathing, drying clothes indoors or breathing, the tenant is responsible for the presence of damp and mould in the property. If there is a presence of damp and mould, and it is causing a health risk – about which there can be little doubt following the tragic case of Awaab Ishak, the property may not be reasonably suitable for human habitation.
It is important to remember that litigation can be extremely expensive and time-consuming; therefore, should be avoided where possible or be the last resort. The time-consuming journey of this type of litigation, and the expense of proving to the court that the behaviour of the tenant is wholly or mainly attributable to the cause of the mould and damp, often means that simply doing the necessary repairs is the most commercially sensible way to resolve matters.
The changes in legislation indicate a tightening of standards applied to the private rental sector. The long-awaited Renters Reform Bill was supposed to extend the Decent Homes Standard to the private rental sector, meaning that everyone in rental accommodation should have a home which is fit to live in.
If a tenant raises an issue regarding the condition of the property, which falls into one of the landlord’s obligations, the landlord should act promptly and take reasonable steps to address the issues.
As set out above, it is almost always inappropriate to say that the ‘tenants’ lifestyle’ is causing the issues. Our advice would be to work with tenants cooperatively to find out what issues they are experiencing, proactively investigate what may be causing them and then take appropriate actions to resolve them wherever possible.
Should litigation be necessary, it will be vital to have evidence of inspections, receipts and invoices for works, explanations of any delay, records of communications etc. These records should provide evidence of the state or condition of the property and the steps taken to resolve any matters raised.
Ultimately, it may be necessary to instruct an expert property surveyor to identify the defect, its cause and the damage inflicted. Only an expert can provide evidence to the court on such matters. Even if the expert confirms there is no breach by the landlord, unless it is proven that the cause is wholly or mainly attributable to the tenant, the landlord may still be required to remedy the defects. The legal costs incurred by that stage are likely to outweigh the costs of acting on the issues when raised.
In short, it is prudent to perform regular property inspections, keep comprehensive records, cooperate with tenants, and proactively manage and address issues when reported.
At Legal for Lettings, our experts are available to help you navigate the technicalities of ever-changing legislation and provide advice to ensure you have the best prospects of successfully recovering possession of your property.
If you want to see how we can help, get in touch at contact@legalforlettings.co.uk.