Creative Green Energy Services for Landlords
Contents
1. Actions Required for ‘Implied covenant to inspect’
2. Why inspections are necessary and required
3. Matters or circumstances determining if unfit
4. What happens if my tenant will not let me in?
5. Penalties: what happens if I do not comply?
6. Tenant’s Potential Action
7. Landlords: What will happen if You win?
8. Landlords: Top Tips for HFHH
1. Actions Required for ‘Implied covenant to inspect’
There is also an implied covenant that the landlord, or a person authorised in writing by the landlord, may enter the dwelling for the purpose of viewing its contents condition and state of repair which is permitted –
only at reasonable times of the day, and
only if at least 24 hours’ notice in writing has been given to the occupier of the dwelling.
‘Implied covenant to inspect’ – mid term check, condition of property survey, by the landlord or a person authorised by the landlord.
Remind your tenant of their contractual agreement to not impede you in carrying out your duties.
2. Why inspections are necessary and required:
• Opportunity to spot any repairs and maintenance issues, it’s the perfect opportunity to repair any minor problems before they become major repairs and therefore more expensive. It’s always easier and cheaper to repair problems at their early stages. Something simple as a small leak can transform into a catastrophic disaster if neglected for long enough.
• Relying on tenants alone to report potential problems can be a recipe for disaster, because sometimes they don’t.
• Assess tenants’ living conditions. While the condition of the property might be generally sound, it doesn’t necessarily mean your tenants are keeping the property in good order. If that’s the case, you may not have legal grounds to evict, but you may want to consider whether or not you wish to renew the tenancy when the fixed term comes to an end.
• Spot illegal activities. Especially pertinent with the ‘right to rent’ checks required, even for sub-letting tenants.
• Helps build a relation with your tenants
• Demonstrates good tenancy management
• End of tenancy and at pre-marketing
3. Matters or circumstances determining if unfit
Determining whether a house is unfit or not is found in section 10 Landlord and Tenant Act 1985 which has also been amended by the Act which adds “in relation to a dwelling in England, any prescribed hazard” (more on this in a moment).
Section 10(1) reads (including amendments from 20 March 2019):
In determining … whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters—
o repair,
o stability,
o freedom from damp,
o internal arrangement,
o natural lighting,
o ventilation,
o water supply,
o drainage and sanitary conveniences,
o facilities for preparation and cooking of food and for the disposal of waste water;
in relation to a dwelling in England, any prescribed hazard; and the house or dwelling shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.
Prescribed hazard means any matter or circumstance amounting to a hazard for the time being prescribed in regulations made under section 2 of the Housing Act 2004. This is presumably referring to schedule 1 of The Housing Health and Safety Rating System (England) Regulations 2005 because it refers specifically to “any matter or circumstance …” which are the 29 hazards listed in schedule 1.
The property is only regarded as unfit if (and only 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 matters that could now cause a property to be unfit (only if it so defective that it is not reasonably suitable for occupation) will also include from 20 March 2019:
• Damp and mould growth
• Excess Cold
• Excess heat
• Asbestos and MMF
• Biocides
• Carbon monoxide and fuel combustion products
• Lead
• Radiation
• Uncombusted fuel gas
• Volatile organic compounds
• Crowding and space
• Entry by intruders
• Lighting
• Noise
• Domestic hygiene, pests and refuse
• Food safety (inadequate provisions)
• Personal hygiene, sanitation and drainage
• Water supply
• Falls (baths, between levels, level surfaces and stairs)
• Electrical hazards
• Fire
• Flames, hot surfaces ecetera
• Collision and entrapment
• Explosions
• Position and operability of amenities etc
• Structural collapse and falling elements
Landlords should therefore rectify any damages that they are responsible for as soon as possible. If a tenant tells you about a problem that is in a common part of a building, then you are strongly advised to either bring it to the freeholder’s attention or rectify if you are responsible, as soon as possible.
4. What happens if my tenant will not let me in?
In the case of repairing a property to make it fit for habitation, the landlord should give at least 24 hours’ written notice to the tenants and the visit should be within ‘reasonable’ hours. Where possible send the written notice during business hours, so that it’s not potentially an intrusion to the tenant.
In an emergency the landlord may be entitled to enter the property on shorter notice. If their tenant will not give them access, landlords should seek legal advice and keep a record of all attempts they have made to contact the tenant.
It should be noted that the tenant denying a landlord access, is not mitigation for not carrying out a landlord’s duty. Not matter how strongly a tenants asserts their rights.
5. Penalties: what happens if I do not comply?
If the courts find that a property is not fit for human habitation, then they may require one or both of the following:
o Compulsory improvement to the condition of the property
o compensation to the tenant
o Tenant compensation
o Currently there are no specified limits on the level of compensation that can be awarded, and this is at the discretion of the judge having considered the evidence.
o Factors which will be taken into account include the perceived harm that has been inflicted on the tenant, the longevity of the issue and the severity of the unfitness in the dwelling. You may also be ordered to pay the tenant’s legal costs.
o Local authorities’ powers and ‘retaliatory eviction’
o As set out above, local authorities will still be able to use their enforcement powers if a tenant in the private rented sector seeks redress under the Act, apart from where the local authority is also the landlord.
o A landlord cannot serve a section 21 ‘no fault’ eviction notice to a tenant with an assured shorthold tenancy unless they have complied with certain legal responsibilities. Social housing landlords cannot make use of a section 21 ‘no fault’ eviction notice as this only applies to assured shorthold tenancies.
o Existing protections against retaliatory eviction provided under the Deregulation Act 2015 will still be available to tenants if local authorities have taken certain actions under the Housing Act 2004. Therefore, there may be circumstances where local authorities consider it necessary to take enforcement action under the Housing Act 2004 even though tenants are also seeking redress under the Act.
o This will protect tenants against unfair eviction where they have raised a legitimate complaint about the condition of their home.
6. Tenant’s Potential Action
The Homes Act applies to tenants who live in social or privately rented houses and flats. The type of housing you live in, for example a bungalow, house or flat, is not important. It also doesn’t matter how you pay your rent, or if you are on Housing Benefit or Universal Credit. It is the agreement that you have with your landlord or letting agent that matters. (Section written in a vernacular addressed to tenants.)
You can use the Homes Act immediately if you signed your tenancy agreement contract on or after 20 March 2019, whether or not this meant you moved into a new property.
If you signed your contract before 20 March 2019, you will have to wait until 20 March 2020 before you can use the Homes Act (unless you sign a new tenancy or your tenancy becomes a monthly rolling contract). But you should still contact your local council if you’re worried about conditions in your home. They have powers to take action on your behalf, at no cost to you.
If a reported repair remains unresolved the tenant Tenants should get their evidence together before going to court. This can include:
• a copy of letters or emails you sent to your landlord or letting agent and local council about the repairs;
• photographs of the problems
• a doctor’s note setting out any mental or physical health problems that have been caused or made worse by your home being ‘unfit for human habitation’
• receipts of items you have had to replace, for example wallpaper that has been damaged by mould, or carpets suffering water damage from a faulty pipe
• a copy of your tenancy agreement if you have one, or proof you are paying rent to your landlord
• a report from any experts you have paid to look at the problem. Their evidence can help to strengthen your claim. This is optional and examples include electricians or the environmental health department of your local council. If your local council’s environmental health department, or your council’s estates team, have already inspected, they might have provided a report.
There are steps that the tenant will have to follow, as outlined in the guidance, the matter can be resolved range of ways:
Your landlord might offer to make repairs or come to an agreement. This can be easier than going to court.
Start the court process. For smaller claims, you need to print and fill in form N1. Follow the link guidance which can help you fill it in. You will need to provide as much detail as possible. For larger claims more detail will be required.
If you are worried that you haven’t got enough evidence, and you’re not a council tenant, then your local council’s environmental health department may inspect your home and make a report.
7. Landlords: What will happen if You win?
If you do win the case in court, your tenant might have to pay some costs. For more information you might want to consider taking legal advice.
8. Landlords: Top Tips for HFHH
Lets make the Homes (Fitness for Human Habitation) Act 2018 part of tenancy management, and not fuel the culture for compensation. Both parties should know:
o Repairs should be done in a timely fashion and not left for long periods unresolved because the situation only ever worsens and gets more expensive
o Court action should always ever be a last resort, conflict resolution should always be used as an option
o Even though landlords might not have the means to carry out repairs, court action and compensation will require resources, so landlord should make sensible contingencies for repairs
o Tenant who take action by legal aid won’t get compensation, but landlords will still get fined if they lose the case
o There has been a sharp increase in ‘no win no fee’ providers targeting tenants
o Rental property is an asset, which needs to be looked after; the property for the duration of the tenancy is the tenant’s home, which the tenant should respect – a routine of regular inspections is in the best interests of both parties
o The present attitude of ‘rouge landlord’ versus tenant is unbalanced – good tenancy management is the counter weight to the tenant landlords situation
o ‘A stitch in time saves nine’, do not rely on your tenant telling you about repairs, especially in communal areas, regular inspections might reveal a small repair that is easy to resolve, and prevent it from becoming a much bigger issue
o Have a good process for issuing instructions to your contractors, and track a repair to its full completion. Do it in as few visits as possible, ensure the right person with the right competences does the job. Keep good records
o Be aware of the disrepair issues that can cause health defects and therefore give rise to compensation, if they are present in your property. Know the 29 items of HHSRS and also the vulnerable groups within those categories, and pay particular attention to these areas when doing your property inspections
If you are a private sector landlord and require more information on your general obligations as a landlord, please see the How to let guide: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/724604/How_to_Let_Jun18.pdf
Sources: Full guide on Homes (Fitness for Human Habitation) Act 2018:
https://www.gov.uk/government/publications/homes-fitness-for-human-habitation-act-2018/guide-for-landlords-homes-fitness-for-human-habitation-act-2018
