The repair covenant and fitness for human habitation
Part 4 of the Act sets out the obligations placed on a landlord with regard to condition of the dwelling. Some of it is very familiar to what we have now in particular the repairing covenant currently found in section 11 Landlord & Tenant Act 1985 (the obligation to keep the dwelling in repair and certain fixtures in working order). There is however a new Fitness for Human Habitation (FFHH) standard which landlords will need to get to grips with before 15 July 2022.
The new obligations will apply to secure contracts, periodic standard contracts and fixed term standard contracts of less than 7 years.
A landlord is obliged to ensure a dwelling is both in repair and fit for human habitation at the start of the occupation and throughout the period of occupation. All other obligations remain such as gas safety, the HHSRS, building control requirements, planning, WHQS and the anticipated WHQS2.
The new obligation to keep in repair is a fundamental term and it extends to:
- The structure and exterior of the dwelling (including drains, gutters and external pipes), and
- The service installations in the dwelling, such as those:
- For the supply of water, gas or electricity,
- For sanitation, and
- For space heating or for heating water.
The details setting out the obligation to ensure that a dwelling is fit for human habitation can be found in The Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022 (“the Regulations”) which is supplemented by guidance for landlords. The obligation is split into 2 parts:
Part 1 of the Regulations sets out the 29 matters and circumstances to which regard must be had and these mirror the current HHSRS requirements.
Part 2 of the Regulations deals with specific requirements placed on landlords in relation to smoke alarms, carbon monoxide alarms and electrical testing and works.
Points to note
Where a landlord fails to comply with either obligation the contract holder can bring a claim for damages and/or specific performance.
The standard of repair required is that which is reasonable having regard to the age and character of the dwelling, and the period during which the dwelling is likely to be available for occupation as a home.
The landlord must be on notice of any want of repair (this is a supplementary term of the contract).
The Act introduces and additional provision as a supplementary term in respect of the Landlord’s response to being placed on notice of the want of repair or unfitness. The landlord must confirm if it accepts there is a repair to be done, if so whose responsibility it is (landlord or contract holder), and if it is the landlord, when work will be done.
S41 requires any notice, statement or document to be in writing. This is likely to apply to the obligation to notify the contract holder of appointments for inspections or appointments for works to be done as well as the obligation to inform the contract holder after an inspection what works are to be done and when.
The landlord has a right of access upon 24 hours notice being given to carry out repairs and undertake any works required to comply with the 2 obligations. There is also provision for immediate access without the contract holder’s consent in an emergency. These are supplementary terms.
The landlord must make good any damage caused as a result of works which fall within the landlord’s obligation. As it does now, that also includes decorative repair too.
The Act specifically states that the landlord cannot impose any obligation on the occupier, so for example a landlord cannot do the work conditional upon the contract holder agreeing or being required to do something. This is nothing new and highly unlikely to be an issue.
Further a contract holder is not liable for fair wear and tear but they are obligated to take care of the dwelling and keep it in a reasonable decorative state. Again nothing new here and is unlikely to have changed existing obligations.
Where the dwelling forms part only of a building, the obligation also covers the structure and exterior of any other part of the building (including drains, gutters and external pipes) in which the landlord has an estate or interest, and service installations which directly or indirectly serve the dwelling, and which either—
(i) forms part of any part of the building in which the landlord has an estate or interest, or
(ii) is owned by the landlord or is under the landlord’s control.
Whether a hazard under part 1 FFHH exists does not pre-determine whether a dwelling is unfit.
Conversely, if a landlord does not comply with the requirements in part 2 FFHH the property will automatically be deemed unfit.
For contracts that convert landlords will have a period of 12 months to comply with the obligations in relation to smoke alarms and electrical testing and works under part 2 of the Regulations. However, if the converted contracts ends and a new occupation contract begins the obligation will apply from the occupation date of the new occupation contract even if that is within 12 months from implementation.
Alterations and consent
Alterations are only permitted with the landlord’s consent, however the Act makes specific provision as to how requests for consent are dealt with. A landlord cannot unreasonably refuse consent nor make the consent subject to unreasonable conditions. If further information is required the landlord has 14 days to do so from the day on which the request is made. A final decision has to be made within a month of the request being made or the additional information being supplied. If a landlord fails to deal within the permitted timescales, consent is deemed given.
Withholding rent during period in which the property is deemed unfit
There is a supplementary term that provides that the contract holder doesn’t have to pay rent for any period when the property is “unfit”. As a supplementary term it can be varied by agreement or may not apply to converting contracts if it is inconsistent with a pre-Renting Homes term).
Limits on the extent of the liability
The requirement to ensure a dwelling is FFHH is confined to things which are reasonable to do at reasonable expense. If for example the property suffers from mould and the landlord has tried all that is can with reference to the possible actions listed in the guidance but there is still mould and the only thing that could possibly resolve the mould issue is to knock down the property and rebuild then the landlord will not be expected to do that and there will not be any liability. Similarly, if a property is destroyed by fire there is no obligation to rebuild.
The issue has to be affecting the contract holder before any liability it attaches. This sounds obvious but we see time and time again in current disrepair claims, claims for damages for matters that cannot in anyway be affecting the tenant’s enjoyment of the property. A common example is that of missing pointing to a chimney. The expert surveyor concludes that there is no evidence it is leading to water ingress and therefore has no impact on the property or the tenant’s enjoyment of it. Although works would be recommended if it is having no impact there should not be any liability.
Both obligations are limited so that if it is the contract holder who has caused the want of repair, or caused the property to be unfit there can be no liability. That means no liability to do work and no liability for financial losses. So for example there would clearly no liability where contract holder has caused deliberate damage (broken windows, damaged doors).
An interesting point here is Contract Holder recharges. The Act and supplemental terms do not specifically set out that where Landlord goes and does work to put right contract holder damage, that contract holder is responsible for the cost. The Act requires the contract holder to put it right though and it provides for the landlord to be entitled to access to put it right if the contract holder doesn’t. In many cases the landlord would probably prefer to do the work, to ensure it is done properly and probably more cost effectively too. Good practice here though would require landlord to tell the contract holder what they are coming to do and what the cost will be.
Specific issue under FFHH – damp and mould
When determining fitness the words “having regard to” are crucial. The existence of a hazard of itself does not pre-determine unfitness. The standard brings together many of the landlords existing obligations and fundamentally it will come down to a common sense appraisal of fitness.
Mould and damp is an issue which constantly arises in housing disrepair claims. The guidance lists a number of proposed actions that landlords can take to deal with damp and mould and they are all things that social landlords do as a matter of course.
So for example strictly speaking in law at the moment there may be no liability to install a DPC if there isn’t one in a property already. However, it is not very often that we would find a a social landlord in recent years who wouldn’t install one if it would assist in dealing with the issue.
The more tricky question is that of mould where the problem is caused by moisture within the property created by normal living. Again, the law doesn’t require you to install extractors if there are none, but as a matter of course social landlords will as well as PIV systems, air bricks and similar. Neither does the law require you to upgrade windows, but commonly you do.
The fitness obligation in practice is more than likely going to require you to do those things as a matter of law. But you are doing them anyway – whether as a result of WHQS or good practice.
What about when you have considered and done them all? Hopefully by that point the problem has been dealt with. If not, you are not required to do anything you cannot do at reasonable expense.
Then of course we do have to consider carefully the impact of the tenant’s lifestyle. The English Housing Ombudsman’s report in October 2021 is well worth a read and raises concerns about the language used in connection with this issue where effectively a tenant is being blamed for the existence of the damp and mould. But there does need to be a sensible look at what the tenant can reasonably do to make it better and to ensure they understand that what they do can affect whether a property suffers from mould. Essentially tenants need to understand that they have a role to play in resolving the issue but the landlord will also do what they can to accommodate the tenant’s lifestyle.
Fitness and repairs
Q Does the obligation to place a carbon monoxide detector in every room with a relevant appliance apply to the tenant’s own items? There is concern internally that tenants do not always ask for permission and therefore we may not have knowledge of these.
> The Act does not draw a distinction between appliances on the basis of who supplied them. The obligation is to ensure one is there if there is a gas, oil or solid fuel burning appliance. Hence it applies whoever supplies that item.
If you are aware the tenant has brought such an item in, I would recommend you provide a CO alarm. If you are unaware of it, then provided the appliance was not there on the occupation date I strongly suspect that you could defend any claim in relation to it on the basis that s97(1) of the Act provides that the obligations only arise when the landlord is aware of the need for “works or repairs”. This applies to the obligation under s91(1)(b) (which is the obligation to ensure the property remains fit for human habitation throughout the duration of the contract), but not the obligation in (a) (which is to ensure it is fit on the occupation date). Hence provided it was not there on the occupation date the defence should apply.
Some care needs to be taken with how a landlord can “become aware” as this is wider than just a tenant reporting a need for the alarm.
It might be sensible to advise tenants that they must inform you if they are installing anything which would require an alarm (whether in a handbook or other documentation they are provided at the outset). Your inspectors and operatives also need to be live to the issue as if they notice a tenant has such an appliance when they inspect ideally, they would flag the need for an alarm then. (Whether this is sufficient for the landlord to “be aware” is a grey area and will depend on all the facts in exactly the same way as in disrepair claims but if on an inspection an appliance is noted, an alarm should be provided).
Of course, if the item is one which you would prefer they do not have there you could consider if it breaches a tenancy term (either the supplementary term which prohibits anything which affects health and safety, or an additional term if there is one).
Q In relation to the providing of the certificates/reports following electrical testing and work, will the burden of proof be on us to show we have given the documentation to the tenant or will it be on the tenant to prove that they did not receive them?
> You need to be able to provide evidence that you have given or sent it, although not necessarily evidence that the tenant has received it. In other words, ensure that you can demonstrate with reference to your records that you either handed it to or posted it to the tenant (e.g. by having a copy of the covering letter, or covering it in a signup checklist).
Q Do we need to install smoke alarms in the attic if the attic is converted to living accommodation? What if not converted but used for (e.g.) storage?
> The obligation is to site a smoke alarm (interlinked and hard wired) on every storey. It may be appropriate to have more than one on each storey depending on the size of the dwelling. There is no obligation to put one in an attic which is only crawl space or storage space (in fact given that the alarm would probably be on the other side of a loft hatch it would be of limited use). However, if the attic has been converted to living accommodation then the obligation is likely to apply.
Where there is any doubt advice should be sought from a specialist contractor. The fire service also provides guidance.
Q Electrical testing – if we have done testing within the last 5 years can we use those certificates?
> Provided (a) the inspection was within the last 5 years and (b) it does not specify that the next inspection should be carried out earlier than 5 years afterwards, yes.
Q There is an obligation in the supplementary terms which applies to secure, introductory and prohibited conduct standard contracts which deals with how we respond to a report of a repair.
It requires us to advise the contract holder whether there are works to be done, whose responsibility it is and when work will be completed.
I was wondering whether, as this is a supplementary term, we can simply strike through it? We’re not saying we won’t do this as standard practice but thought we could maybe exclude it as an obligation from the contract?
Can you confirm whether this is possible?
> We do not think you can remove it from the contracts for existing assured or secure tenants. The transitional provisions apply all of the supplementary terms to existing tenancies, unless they are inconsistent with something currently in the tenancy. It seems unlikely that your tenancies will say you will not provide these responses! Of course, this term only applies to secure, introductory and prohibited conduct standard contracts. Hence it will not apply to other standard contracts.
You could opt to remove it from new contracts (i.e. for brand new tenants after the Act is implemented). You could also consult after implementation to remove it from existing contracts. Whether you do want to do this needs careful consideration. I know many social housing providers are understandably nervous about removing terms which the WG has prescribed, even if only as supplementary rather than fundamental terms, especially where those terms are there for the benefit of contract holders. I can understand why you would want to remove this term, but you also need to bear in mind how that may be seen.
The obligation which the supplementary term provides is to provide confirmation of whether you consider a repair is necessary, if you accept it is the landlord’s responsibility and when it will be done. The reason we think it should be in writing is because the Act provides that any “notice, statement or other document” required or authorised to be given by the occupation contract should be in writing. Whether the information in this supplementary term is a “notice, statement or other document” may be debatable – but it is clear that you have to give the information so the safest course is to give it in writing (although electronic communication will work if the tenant has agreed).
I have to say if landlords are able to get this working, it will help enormously with defending disrepair claims. That said it is also a double-edged sword – if landlords do not get systems in place to send the necessary information out then it may make defending claims harder.
Electrical safety and new builds
Q An EICR is obviously designed to inspect and test an installation to make sure it is safe for continued use.
When a completely new property is handed over to us the installations are brand new and thus would not require a further EICR to be carried out for the first five years.
Does the RHA allow for this? Or would we effectively need to get EICRs done straight away?
> The regulations do require an EICR but nothing would prevent this being done at the time of installation.
Carbon monoxide detectors and failed access
Q CO detectors – if a property is without a CO detector on 1st December due to failed access, does this trigger FFHH liability on the Association or is this not imposed on the landlord as we have attempted access without success?
> The property would be “unfit” but s96(1) provides that there is no liability in terms of fitness, if the property is unfit “wholly or mainly because of an act or omission of the contract holder”.
I would hope that you would be able to defend any claim on the basis that failing to give access falls within that. However, it is obviously crucial that you can provide evidence that you have followed all relevant processes and that you have given written notice of all appointments, and that your records demonstrate the lack of access. It is sensible to do everything you can to ensure compliance.
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