This piece of legislation has appeared to have united all the differing factions (landlord groups such as the RLA, NLA, and Shelter) within the private rented sector as they have all shown their support. In theory, a well-intending landlord, one who respects the tenant, should have no fear of this new piece of legislation. Sadly from our experience, you sometimes find that the unintended consequences of legislation can have a much more negative impact on the daily lives of a landlord and tenant than anyone anticipated. We will have to wait and see, how the legislation is interpreted by the courts and how it will work in reality.
When does it commence?
The legislation comes into force on the 20th March 2019 for all new tenancies created on or after this date to include any statutory periodic tenancies which come into being after the end of the fixed term. On the 20th March 2020, the legislation will basically apply to all tenancies in existence on that date.
What does the Act do?
In determining whether a house is ‘unfit’, the Act incorporates the 29 hazards found in the Housing Health and Safety Rating System and adds them to the 9 original fitness categories found in the Landlord and Tenant Act 1985. In bullet point form it now covers the following:
- freedom from damp
- internal arrangement
- natural lighting
- water supply
- drainage and sanitary conveniences
- facilities for preparation and cooking of food and for the disposal of wastewater and
- 29 hazards under the Housing Health and Safety Rating System
The updated ‘fitness standard’ includes issues not currently covered by a landlord’s legal repair responsibilities, known as Section 11, such as damp caused by design defects i.e. lack ventilation, rather than disrepair, and infestation, such as bed bugs. The Act gives tenants a way to take effective action themselves if they rent a property in poor condition and the landlord fails to do the necessary maintenance within a reasonable time.
The Act gives a tenant the right to take their landlord to court where the property is not fit – they will be able to apply directly to the court for an injunction to compel a landlord to carry out works, or for compensation for the landlord’s failure to keep the property in good repair. In terms of the evidence required, obviously it will be dependant on the issue being debated, but it could be possible for a tenant to rely on their own evidence without the need to collate expert statements i.e. lack of heating.
There are some exemptions which will mean a landlord cannot be held liable:
- Unfitness caused by the tenant’s behaviour
- Fire, flood, or some other inevitable accident
- Anything that the tenant has the right to remove
- Anything that would put the landlord in breach of legislation i.e. listed building
- Where the landlord needs consent i.e. superior landlord, and this has been refused
What does this mean for a landlord?
This will place greater emphasis on the landlord of ensuring properties are *fit* for occupation before they are let. The importance of a detailed check-in, regular inspections, and a sound repair reporting process cannot be underestimated, as a way of minimising some of the problems which may arise from such legislation.
As previously mentioned, the *good* landlord is not the person that is intended to be affected by this legislation, but they will still need to ensure that their systems are robust enough to provide a due diligence defence in the event of a tenant looking to claim compensation on the basis of the Fitness Act.
A landlord should evaluate the following as a minimum:
- Detailed check-in, with pictures, signed by the tenant
- Repair process highlighting any delay in the works being completed i.e. tenant refusal to attend
- Regular inspections signed by the tenant
- Communication channels with other interested parties i.e. freeholders and local council