How many bed bugs does it take to make a flat unfit to live in? Some of the classic cases on fitness for human habitation involved judges pondering this interesting question.

Since the Homes (Fitness for Human Habitation) Act 2018 (the Act) came into force, the position on what is a fit home has simplified for social housing landlords, who all want to provide decent homes fit for human habitation.

The Act, passed with general agreement through Parliament in the wake of the Grenfell tragedy, inserts a new Section 9 into the Landlord and Tenant Act 1985 to sit alongside the well-known Section 11 (keeping in repair the structure and exterior and other fittings).

The new provision applies to any lease for less than seven years, so most social housing leases and tenancy agreements. It requires dwellings to be fit for human habitation at the time the lease is granted and throughout the term of the lease.

What has happened to claims in the two years since the provision came into force?

Our experience is that while there has not been a flood of claims, there are stirrings of claimant lawyers farming for claims on the issue of damp and mould.

The great incentive is that claimants no longer have to prove damp is the result of structural disrepair factors to show a breach of the repairing covenants implied by the Landlord and Tenant Act. Damp and mould itself can suffice.

The Act is ripe for being misrepresented as a charter for compensation at the mere sight of mould or damp, which can occur in the best maintained and managed flats.

We have had cases defended on the basis of relying on these important points:

• It is not enough to prove the existence of damp or mould to show unfitness for habitation. It is crucial to understand that under Section 10 a dwelling is only regarded as unfit for human habitation if it is so far defective in one or more of the above defects - including damp - that it is not reasonably suitable for occupation in that condition. That means a claimant must show a real risk to health.
• Where the claimant has for example generated excessive moisture causing damp and mould, we have argued that it is the act or default of the tenant that caused the defect. We have relied on the following two defences:
  
  • Section 9A (2)(a)(i) - the claimant has failed to act in a tenant like manner.
  • Section  9A(3)(a) - the damp has been caused by the claimant’s own breach of contract.

It is crucial to understand the precise wording of the legislation to weed out the try-ons from the genuine claims. 

What does it mean to be fit for human habitation?

The best starting point is the rather vague Section 10, which states that a property must be ‘reasonably suitable for occupation’. It lists ten areas to consider:

• Repair
• Stability
• Freedom from damp
• Internal arrangement
• Natural lighting
• Ventilation
• Water supply
• Drainage and sanitary conveniences
• Facilities to prepare and cook food and disposal of waste water
• Any prescribed hazard (under Section 2 of the Housing Act 2004).

Remedies under the Act include claims for general damages like any disrepair claim, and an order for landlords to undertake the necessary works to make the property fit for human habitation.

Remember also that Section 9A allows the landlord to enter the property to inspect its condition and state of repair at reasonable times of day on giving 24 hours’ notice. While this has been difficult during the pandemic, as we hopefully move to less challenging times this provision should be relied on to nip problems in the bud. .

John Goodman (jogoodman@dacbeachcroft.com) is a Partner at DAC Beachcroft.