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The Homes (Fitness for Human Habitation) Act 2018 amends 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. This implied covenant is 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”.

The Act applies to tenancies of less than 7 years (including periodic tenancies) granted on or after the commencement date under s9b(1) and applies to all fixed term tenancies that began before the commencement date but became periodic tenancies after the commencement date under s9b(5). The Act also includes ‘replacement’ tenancies (renewed for another fixed term) under s9b(6).

If the property is a flat in a block then the obligation extends to all parts of the building in which the freeholder landlord has an estate or interest under s9a(6) which parallels that of s.11(1a) of the Landlord and Tenant Act 1985 (to keep in repair the structure and exterior of the dwelling-house including drains, gutters and external pipes. This gives the tenant a cause of action where unfitness arises from the common parts.

For example, penetrating damp (also known as lateral damp) can occur at any level and impact on the interior of properties. It’s very common with older premises that have solid walls but not newer properties which have cavity wall insulation. On the other hand, whilst rising damp will also impact on the interior of a property, it is only likely to be found on the ground floor of very old houses or blocks of flats and is rarely seen in flats above the ground floor.

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