Housing disrepair claims have risen sharply, and a landlord receiving one is usually looking at an allegation written by someone who has never seen the property.
What the Act does
The Homes (Fitness for Human Habitation) Act 2018 amended the Landlord and Tenant Act 1985. It requires that a dwelling let on a residential tenancy is fit for human habitation at the start of the tenancy and throughout it.
The significant change was procedural rather than substantive: it gave tenants a direct route to enforce that in court, without needing to go through the local authority.
Fitness is assessed against a list of matters, drawn from the earlier legislation and extended by the Act:
- Repair
- Stability
- Freedom from damp
- Internal arrangement
- Natural lighting
- Ventilation
- Water supply
- Drainage and sanitary conveniences
- Facilities for preparing and cooking food and disposing of waste water
- Any prescribed hazard under the Housing Health and Safety Rating System
A property is unfit if it is so far defective in one or more of those that it is not reasonably suitable for occupation in that condition.
What this means in practice
Two points tend to decide these cases.
It isn’t a standard of perfection. The test is whether the property is reasonably suitable for occupation, not whether it’s in good order throughout. Wear, dated fittings and minor defects don’t make a property unfit.
Damp and mould is where most claims sit. And this is where the technical question matters most, because the cause determines the obligation. Penetrating damp from a defective roof or failed pointing is a repair issue. Rising damp through a failed or bridged damp proof course is a repair issue. Condensation arising from the way the property is occupied, with inadequate ventilation provision, is a more complicated question – but it can also arise from a building defect such as cold bridging or inadequate insulation, which brings it back to the landlord.
Establishing which of those you’re actually looking at is a surveying question, not a legal one, and it is frequently where a claim turns.
See our guides to damp and timber surveys and damp surveys.
What a landlord’s surveyor does
Acting for a landlord on a disrepair claim, the work involves:
- Inspecting the property and recording its actual condition, with photographs, against the allegations made
- Establishing the cause of each defect alleged, rather than accepting the characterisation in the claim
- Distinguishing disrepair from condition. Not everything a tenant is unhappy about is a breach, and not everything that looks poor is a defect
- Identifying tenant-caused damage and occupation factors where they’re relevant
- Specifying what genuinely needs doing, and in what order
- Reporting in a form that can be used in the claim
Why it’s worth getting this looked at properly
A claim is often settled on the basis of a schedule prepared by the other side, which may conflate things that need doing with things that don’t, and may attribute everything to a single cause.
An independent inspection frequently narrows that considerably. It also identifies work that genuinely is the landlord’s responsibility, which is worth knowing early: the works are usually cheaper than the claim.
Where it overlaps with our other work
The inspection and reporting discipline is the same as a schedule of condition, and the technical investigation the same as any defect investigation. Where a matter goes further, we also act as expert witness.
Talk to us
We act as landlord surveyor on housing disrepair matters across the Cotswolds, Gloucestershire and Bath. Get in touch to discuss a claim.
This article is general information about the surveying issues involved. It isn’t legal advice, and a landlord facing a claim should take advice from a solicitor on the legal position.
Frequently asked questions
The Act applies to tenancies granted after it came into force, and since March 2020 to periodic tenancies that were already running. A solicitor can advise on a particular tenancy.
It depends on the cause. Condensation arising from a building defect such as cold bridging or inadequate ventilation provision is a different matter from condensation arising purely from occupation. Establishing which is the technical question.
Frequently it narrows it, by establishing what the defects actually are and what caused them, rather than accepting the characterisation in the claim.
