It’s unusual for a piece of legislation to put letting agents, tenant groups and politicians on the same side of a debate, but the Homes (Fitness For Human Habitation) legislation has done just that. The initial Bill was introduced by Karen Buck MP back in 2015 and came into legislative force last year.
Initially, the legislation applied to tenancies shorter than 7 years that were granted on or after 20 March 2019, new secure, assured and introductory tenancies on or after 20 March 2019 and tenancies renewed for a fixed term on or after 20 March 2019.
However, from the 20 March 2020 the Act applies to ALL tenancies.
There are exceptions to the rules; landlords will not be required to remedy issues if:
the problem is caused by tenant behaviour
the problem is caused by events like fires, storms and floods which are completely beyond the landlord’s control (sometimes called ‘acts of God’)
the problem is caused by the tenants’ own possessions
What is FFHH?
The Act is relatively straightforward and supercedes very outdated law by which only landlords of properties at extremely low rent (annual rents of £52 outside of London; £80 inside London!) are obliged to keep the property they rent out in a state which is fit for human habitation.
There have been ongoing concerns about property standards in England. The 2016/17 English Housing Survey (EHS) found that 38% of private renters lived in ‘poor housing’ which was defined as; serious damp or mould, a Category 1 HHSRS hazard, is non-decent, or has substantial disrepair.
Previous statutory obligations to keep properties in repair were outdated and have ceased to have effect. Now, the legislation applies to all tenanted residential properties and gives tenants a legal pathway on which to challenge a landlord through the courts if there are any failings.
The hazards and issues that the legislation details are straightforward, although in some cases, seem somewhat extreme – more on that later. However, from a management perspective, there are three very important words that have a massive impact; “during the term”.
This will result in a significant change in the way that properties will need to be managed. It means that one cannot simply make sure that the property is in a fit and proper state at the start of each tenancy – the property has to be fit for human habitation throughout the tenancy term.
Inventory and Inspections
Let’s assume that a a property has been let to a tenant for the first time. The first time that the property is looked at in any great detail is when the property inventory is prepared. Every inventory process should already include taking photos of the condition of the property to back up written report for the purpose of avoiding any dispute over the recovery of the tenancy deposit.
However, having photographic evidence of the condition of a property at the beginning of a tenancy becomes doubly important with FFHH as it is the first step in creating a detailed audit trail to show fitness for human habitation.
As the legislation is based on the Human Health and Safety Rating System (HHSRS) – more on that later too – this has resulted in a revised approach to the inventory processes, with more emphasis on photographic evidence that specifically covers the potential hazards detailed in the HHSRS.
Although HHSRS covers areas which cannot be proved or disproved by taking a photograph, it also covers elements like electrical hazards, lighting and trip/fall hazards, which can be covered by photos. Therefore, as far as these elements are concerned, photographic evidence can prove or disprove that the property was in a fit state for human habitation, so it’s vital that substantial evidence is taken at the inventory stage, prior to a tenant actually moving in.
Those important three words; ‘during the term’ means that having detailed, photograph based mid term inspections is also of paramount importance as these will also help to prevent a property from ever becoming unfit for human habitation during the tenancy. Again, inspection reports have to be changed to accommodate the new legislation.
When the tenancy comes to an end, the check-out process should include a photograph based report as a final check to ensure that the property has not become unfit for human habitation during the tenancy. If it has, the issues can be rectified prior to the next tenants moving in.
The way in which repairs and maintenance issues are handled has altered dramatically since the legislation came into force.
Things will go wrong in properties and repairs will be required at various stages throughout a tenancy. However, if the issue makes the property unfit for human habitation, it then becomes the landlord or agent’s responsibility to prove that the issue has been resolved adequately which makes the property fit for human habitation once again.
For instance, if the repair relates to a faulty boiler, evidence will be needed to prove that the boiler is working again. Any repairs and maintenance action that takes place during a tenancy should be documented so as to provide a suitable audit trail.
As previously stated, this emphasises the importance of carrying our regular photograph based mid term inspections both to highlight any issues that may lead to a property becoming unfit for human habitation during the tenancy. Photographic evidence will also help to show that such an issue has been resolved.
Detailed Audit Trails
As previously stated, it is vital to keep an audit trail of the repairs and maintenance process. If there is any dispute about which actions were promised or taken and when they should have happened, evidence will show who said or did what, when and how.
This will help with deciding whether fitness for human habitation requirements have been breached at any point. This means that every action, from the beginning to the end of the process, should be documented as thoroughly as possible to create a robust audit trail.
Such detailed notes include copies of emails, telephone conversations, social media messages, photographs, property visits, inspection reports and any other form of evidence or communication that relates to the tenancy.
The Hazards and Legal Action
Tenants have the right to take legal action if landlords fail to keep properties in a state that is fit for human habitation.
Reports estimate that since the legislation was introduced, around 21% of court disputes between landlord and tenant are as a result of FFHH. This will only rise when the law applies to all tenancies from 20th March 2020.
The term “fitness for human habitation” is defined in the Landlord and Tenant Act 1985. It 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 (set out below) that it is not reasonably suitable for occupation in that condition.”
Added to this list is “any prescribed hazard” as defined by section 2 of the Housing Act 2004. “Hazard” is defined as “any risk of harm to the health or safety of an actual occupier of a dwelling or HMO which arises from a deficiency in the dwelling or HMO”.
The Housing Health and Safety Rating System (HHSRS)
The Homes (Fitness for Human Habitation) Act 2018 uses the 29 hazards listed in the Housing Health and Safety Rating System (HHSRS) to help define the categories that determine whether a house is “fit for human habitation”.
The list had originally been created in 2006 to help local authorities enforce conditions in the private rented sector, but is now a list that lettings agents, property managers and landlords also need to be aware of as far as the safety and fitness for human habitation of their properties are concerned.
Each hazard is assessed separately and can be classed as either Category 1 or Category 2. A hazard is classed as Category 1 if it is deemed a serious and immediate risk to a person’s health and safety. If a hazard is deemed less serious or less urgent, it is classed as Category 2.
Below are the 29 hazards that need to be checked when they need to ensure a property is fit for human habitation.
(1) Damp and mould growth – this includes threats to health from house dust mites and mould or fungal spores resulting from dampness or high humidity.
(2) Excess cold – threats to health from sub-optimal indoor temperatures.
(3) Excess heat – threats to health from excessively high indoor air temperatures.
(4) Asbestos and manufactured mineral fibres (MMF) – covers the presence of and exposure to asbestos fibres and manufactured mineral fibres within dwellings.
(5) Biocides – this covers threats from those chemicals used to treat timber and mould growth, but not insecticides or rodenticides used to treat pests.
(6) Carbon monoxide and fuel combustion products – includes hazards from the presence of excessive levels in the indoor atmosphere of carbon monoxide, nitrogen dioxide, sulphur dioxide and smoke (not smoke from cigarette or pipe smoking).
(7) Lead – threats to health from the ingestion of lead eg from lead based paints or pipework.
(8) Radiation – covers threats from radon gas and its daughters primarily airborne. The Operating Guidance states there is no evidence to justify including electromagnetic fields from power lines or mobile phone masts. Leakage from microwave ovens might be considered where the oven is provided by the landlord but the incidence of significant microwave leakage is very rare.
(9) Uncombusted fuel gas – covers the threat of asphyxiation resulting from the escape of fuel gas.
(10) Volatile organic compounds – this covers threats from a diverse range of organic chemicals including formaldehyde, which are gaseous at room temperature and can be found in a variety of materials in the home.
Space, security, light and noise
(11) Crowding and space – covers hazards associated with lack of space within the dwelling for living, sleeping, and normal household life.
(12) Entry by intruders – covers difficulties in keeping a dwelling secure against unauthorised entry.
(13) Lighting – includes threats to physical and mental health associated with or inadequate natural or artificial light.
(14) Noise – includes threats to physical and mental health as the result of exposure to noise inside the dwelling or within its cartilage.
Hygiene, sanitation and water supply
(15) Domestic hygiene, pests and refuse – this covers hazards resulting from poor design, construction and layout so that the dwelling cannot be readily kept clean; access into and living places within the dwelling for pests; and inadequate and unhygienic provision for storing and disposal of household waste.
(16) Food safety – covers threats of infection resulting from inadequacies in provision and facilities for the storage, preparation and cooking of food.
(17) Personal hygiene, sanitation and drainage – includes threats of infection and to mental health associated with personal hygiene, including personal and clothes washing facilities, sanitation and drainage but not problems of pests associated with defective drainage.
(18) Water supply for domestic purposes – covers the quality and adequacy of the supply of water within the dwelling for drinking and domestic purposes, such as cooking and washing. Quality includes threats to health from chemical and microbiological pollutants.
(19) Falls associated with baths etc – this covers any fall associated with a bath or shower or similar facility.
(20) Falls on level surfaces – includes falls on any level surface such as floors, yards and paths, and includes falls associated with trip steps, thresholds or ramps where the change in level is less than 300mm (about one foot).
(21) Falls associated with stairs and steps – covers any fall associated with stairs, steps and ramps where the change in level is greater than 300mm (about one foot) and includes falls associated with internal stairs and ramps, external steps and ramps within the curtilage, internal common stairs or ramps in the building containing the dwelling, including internal and external stairs providing a means of escape in case of fire or access to shared amenities. It includes falls over ballustrading on stairs or steps but not falls over balconies or from landings.
(22) Falls between levels – covers falls from one level to another inside or outside the dwelling where the difference in level is more than 300mm (about one foot), eg falls out of windows, from balconies, landings and accessible roofs.
Electric shocks, fires, burns and scalds
(23) Electrical hazards – includes hazards from shock and burns resulting from exposure to electricity including lightning strikes.
(24) Fire – covers threats from exposure to uncontrolled fire and associated smoke in a dwelling, including injuries from clothing catching alight on exposure to an uncontrolled fire, but not injuries caused by clothing catching alight from a controlled fire or flame, such as when reaching across a gas flame on a cooker.This hazard covers defects to the electricity supply, meters, fuses, wiring, sockets or switches.
(25) Flames, hot surfaces and materials – covers threats of burns caused by contact with a hot flame or fire and contact with hot objects or non-water based liquids, and scald injuries caused by contact with hot liquids and vapours.
Collisions, cuts and strains
(26) Collision and entrapment – includes risk of physical injury from trapping body parts in building features such as doors or windows and from striking or colliding with objects such as windows, doors, low ceilings, low door frames and walls.
(27) Explosions – covers the threat from the blast of an explosion, from the debris generated by the blast and from the partial or total collapse of a building as the result of an explosion.
(28) Ergonomics – includes threats of physical strain associated with functional space poor location of fittings and amenities and other features in dwellings.
(29) Structural collapse and falling elements – covers the threat of the whole or part of the dwelling collapsing, or of an element or part of the fabric being displaced or falling because of inadequate fixing, disrepair or as the result of adverse weather conditions.
As you can see, the 29 hazards covered by HRHSS looks very scary! In reality, the vast majority of these won’t be an issue in most properties, however, that doesn’t mean that they should be ignored.
Compliance and Penalties
If a landlord fails to comply with the Act, tenants may have the right to take court action for breach of contract.
If the court decides that the landlord has not provided their tenant with a home that is fit for habitation, then the court can:
make the landlord pay compensation to their tenant
make the landlord do the necessary works to improve their property
If the tenant seeks redress through the courts, this does not stop their local authority from using its enforcement powers which include levying fines and severe penalties if appropriate.
How Professional Properties can help…
We have undertaken a tremendous amount of work and staff training to ensure that both properties and landlords are compliant with FFHH moving forward.
Our reports have been updated to focus on FFHH and our audit trails continue to be very detailed.
If you have any questions regarding FFHH, then please contact us on the FFHH hotline; 01332 300125