Fitness of Rented Flats for Habitation
The health, safety and fitness of flats is governed by Part 1 of the Housing Act 2004 (specifically that of the Housing Health and Safety Rating System) and there is also new legislation in the form of the Homes (Fitness for Human Habitation) Act 2018 which is now law. It creates a new duty on all residential landlords (amending s10 of the Landlord and Tenant Act 1985 (repair, stability, freedom from damp, internal arrangement, natural lighting, ventilation, water supply, drainage and sanitary conveniences) by implying a covenant (promise) into a residential tenancy to ensure that the property is fit for human habitation at the beginning of the tenancy and throughout. The term ‘fitness for human habitation’ is defined in the same section of the Act which states that ‘a property is to be regarded as 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”.
For rentals under 7 years duration, landlords and their letting agents (if they use one) have a duty under common law to ensure the safety of the property and its contents so that no injury or damage is caused to the occupants, neighbours or to the public. The property must be gas, smoke and carbon monoxide safe, and electrically safe . Even if such obligations are not contained within the tenancy agreement they are implied by the statutory obligation under s11 of the Landlord and Tenant Act 1985 (repairing obligations in short leases).
Landlords and letting agents will also be responsible for repairs to baths, sinks, toilets, basin, and heating/hot water installations. Responsibility for any other repairs depends on what is agreed between both parties. It is also important to be aware that the landlord can include a sum to cover the cost of repairs in the rent but cannot pass the costs to tenants in the form of a separate service charge.
There should always be a repairs procedure in place for tenants to follow and whether the landlord/letting agent chooses to be informed verbally or in writing a record should be kept of all problems reported. Tenants should do the same. Alternatively repair forms can be issued which can be filled in and then passed over for action. If no agent is used there should be an emergency procedure in place such as the issuing of a list of contractors names and numbers. Tenants should never be left with no-one to contact.
Landlords should deal with all repair requests in a timely manner, with the Association of Independent Inventory Clerks (AIIC) outlining the recommended time scales for landlords to respond, depending on the problem:
- Emergency response – gas and water leaks, serious electrical faults;
- 24 Hour response – heating and water systems and other non life threatening electrical problems eg broken windows if not caused by tenant negligence;
- 72 Hour response – kitchen appliances and other items that affect the daily life of a tenant;
- Less urgent responses – broken lawn mowers, a fallen fence panel or a dripping tap.
THE HHSRS PROCESS
The HHSRS process requires inspectors to examine properties for health and safety defects which once identified the inspectors consider the likely harm that could happen as a result of such findings and use a scoring system to determine the seriousness of such defects.
Note: Whilst landlords who rent out flats are bound by the covenants contained within the lease they can also be bound by any findings under HHSRS, which I’ve personally used for defects in individual flats and the common areas of our block.
There are 29 such defects which are as follows:
- Damp and Mould Growth
- Excess Cold
- Excess Heat
- Asbestos and MMF
- Carbon Monoxide and Fuel Combustion Products
- Uncombusted Fuel Gas
- Volatile Organic Compounds
- Crowding and Space
- Entry by Intruders
- Domestic Hygiene, Pests and Refuse
- Food Safety
- Personal Hygiene, Sanitation and Drainage
- Water Supply
- Falls Associated with Baths etc
- Falling on Level Surfaces etc
- Falling on Stairs etc
- Falling between Levels
- Electrical hazards
- Flames, Hot Surfaces etc
- Collision and Entrapment
- Position and Operability of Amenities etc
- Structural Collapse and Falling Elements
When Hazards Are Found
Whilst landlords who rent out flats are bound by the covenants contained within the lease they can also be bound by any findings under HHSRS, which I’ve personally used both for the common areas of our block and for individual flats. Under s5 of the Housing Act 2004, where Category 1 hazards are found, the local authority are under a general duty to take enforcement action and under s20 of the Housing Act 2004, it is the duty of the local authority to:
1: Make A Prohibition Order
A Prohibition Order can be made if the local authority is satisfied that a category 1 hazard exists on any residential premises. Such an order imposes prohibition (or prohibitions on the use of any premises as is or are specified in the order in accordance with subsections 3 (if only one course of action within subsection 2 is available to the authority in relation to the hazard, they must take that course of action), subsection 4 (if two or more courses of action within subsection 2 are available to the authority in relation to the hazard, they must take the course of action which they consider to be the most appropriate of those available to them and s22 (contents of prohibition orders).
The order may prohibit use of the following premises:
- If the residential premises on which the hazard exists are a dwelling or HMO which is not a flat, it may prohibit use of the dwelling or HMO;
- If those premises are one or more flats, it may prohibit use of the building containing the flat or flats (or any part of the building) or any external common parts;
- If those premises are the common parts of a building containing one or more flats, it may prohibit use of the building (or any part of the building) or any external common parts.
Note: 2 and 3 are subject to subsection 4 (any such prohibition may prohibit use of any specified premises, or of any part of those premises, either a) for all purposes, or
b) for any particular purpose except (in either case) to the extent to which any use of the premises or part is approved by the authority.
The notice may not, by virtue of subsection (3)(b) or (c), prohibit use of any part of the building or its external common parts that is not included in any residential premises on which the hazard exists, unless the authority are satisfied that a) the deficiency from which the hazard arises is situated there, and b) that it is necessary for such use to be prohibited in order to protect the health or safety of any actual or potential occupiers of one or more of the flats.
A prohibition order under this section may relate to more than one category 1 hazard on the same premises or in the same building containing one or more flats.
The operation of a prohibition order under this section may be suspended in accordance with s23 (suspension of prohibition order).
As with improvement notices, prohibition orders can also be suspended and made to come into operation after a specified event (such as when an occupant moves in or out of the property).
Someone who allows premises to be used against the terms of the order commits an offence.
Note: Local authorities have the power to make a prohibition order for category 2 hazards if a) they are satisfied that a category 2 hazard exists on any residential premises, and b) no management order is in force in relation to the premises under Chapter 1 or 2 of Part 4. The authority may make a prohibition order under this section in respect of the hazard.
2: Serve an Improvement Notice
This is a possible course of action for dealing with category 1 or 2 hazards and must at the very least remove them.
ACCESS TO A TENANTED FLAT
Landlords also need to be aware of the process for accessing tenanted flats to carry out repairs under s11 (ss6) of the Landlord and Tenant Act 1985 which reads as follows: ‘in a lease in which the lessor’s repairing covenant is implied there is also implied a covenant by the lessee that the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for viewing their condition and state of repair’.
So landlords wishing to carry out repairs do not have the right to turn up unannounced to check on a property or a tenant, instead a mutually convenient date and time must be arranged which must be at a reasonable time and after giving the tenant not less than 24 hours notice in writing. More notice can be given if the works are to be prolonged or disruptive and in such cases tenants should be given details of the works to be carried out and a rough idea of a finishing time or completion date.
If the landlord or the contractors attempt to enter without permission the tenant can launch a claim for trespass as they have the same rights over the premises just as an owner-occupier does. Therefore landlords should be wary about entering the property when the tenant is not there. Where a tenant has given permission, but has advised they will not be at the property themselves, it is recommended that landlords/agents are best accompanied by a witness.