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Dear Landlord, is your property fit for human habitation? You might want to check again!

If you are a landlord and lease out your property for residential purposes, then you need to know about the new legislation coming into force on 20th of March 2019. The Homes (Fitness for Human Habitation) Act 2018 applies to new tenancies and renewed tenancies from 20th of March 2019. It applies to any lease under which a dwelling is let wholly or mainly for human habitation for a term of less than 7 years.

It amends the current fitness for habitation requirements found in the Landlord and Tenant Act 1985 by inserting a new section 9A headed ‘Fitness for Human Habitation of dwellings in England.’

The legislation puts the onus on landlords to take responsibility to ensure that the dwelling is fit for human habitation at the time the lease/tenancy is granted or if later, at the beginning of the term of the lease/tenancy and obliges the landlord to ensure that the dwelling remains fit for human habitation during the term of the lease/tenancy.

Landlords who use Managing Agents to manage their properties need to be certain that their Agents undertake routine inspections of the properties and when notified of any disrepair, take swift action to investigate, assess risk and arrange necessary remedial works to maintain the minimum standards for human habitation and avoid breaches of implied covenant. The Agent cannot be a scapegoat for any implied breach of covenant by the landlord.

Section 10 of the Landlord and Tenant Act 1985 sets out the circumstances to determine if the property is unfit. A house or dwelling will be deemed unfit for human habitation if any one or more of these circumstances render the property not reasonably suitable for occupation in that condition. A landlord should also take note of any prescribed hazard. There are 29 hazards listed in Schedule 1 of the Housing Health and Safety Rating System (England) Regulations 20015.

When determining if a property is fit for human habitation, a landlord should check whether there is any damp and mould growth, excess heat or cold, presence of asbestos or MMF, biocides or carbon monoxide. The landlord should have proper working monitors/alarms in place, there should be natural lighting, adequate ventilation, water supply, drainage, disposal of waste water and adequate facilities for cooking. The list goes on.

It is advisable that landlordscreate a checklist of all the circumstances considered under the legislation which they can use as a cross reference to record compliance prior to the new tenancy and at the regular inspections. The landlord can produce this document at a later stage to evidence his compliance and avoid claims by the tenant.

Even though there is an implied covenant to inspect which entitles thelandlord or authorised persons in writing, to enter the dwelling at reasonable times of the day for the purposes of viewing its condition and state of repair, the landlord must provide at least 24 hours advance written notice to the occupier. A savvy landlord willplanahead and pre-arrange regular inspections. By doing this, the landlord can check if his tenant is upholding the tenant’s covenants and not creating any potential disrepair claims for which the Landlord could ultimately be responsible.

The tightening of the rules means more upfront work for landlords but it also provides an opportunity for landlords to keep a watchful eye on their tenants and nip any potential issues in the bud before they create breaches of the implied covenant later along the line. For those landlords who have exercised proper diligence, these new measures should not cause any concern, but for those landlords who fall by the wayside, watch out - as you might find yourselves having to pay out more in damages to a disgruntled tenant than you would have paid to follow proper procedure in the first place. My advice is always err on the side of caution and if in doubt take proper legal advice. Forewarned is forearmed.

For advice on residential landlord and tenant matters please contact Patricia Wollington, Dispute Resolution Solicitor at Sykes Anderson Perry Limited on 020 3794 5959 or by email to Patricia Wollington.

February 2019