The Homes (Fitness for Human Habitation) Act 2018 received the Royal Assent at the very end of last year and is due to come into force on 20 March. You can read an excellent description on the Nearly Legal site.
How is this act going to impact on landlords?
My Landlord Law members had a talk recently on the act from solicitor Giles Peaker (who was part of the legal team which got it through Parliament, and who also runs Nearly Legal) and these seemed to me to be the four most pertinent points which came out of that talk.
1. Good landlords should not suffer
If your properties are in good nick and you take care to keep them so – you should not have a problem. This act is aimed at the bad landlords, not the good landlords.
However, even good landlords will need to take more care and more precautions to ensure that they are fully compliant.
2. Landlords can’t avoid liability if there is nothing ‘broken’
In the past, the main landlords’ obligations for repair of the property (vis a vis the tenants) were set out in section 11 of the Housing Act 1985. This made it clear that landlords were only liable for things which are in ‘disrepair’ (i.e. damaged or broken).
So a landlord would be liable if, say, the boiler was broken. However, if there was no heating at all – section 11 would not help you. As nothing would be in disrepair.
The landlord would be vulnerable to enforcement by the Local Authority if, after an inspection, the property was found to have a ‘category 1 hazard’ under the Housing Health and Safety Rating system (HHSRS). However, Local Authorities often fail to take action or even inspect properties, largely due to lack of staff and resources. There was nothing a tenant could do about this – which often left them without any recourse if a property was ‘unfit’ but nothing was actually in disrepair.
However, from 20 March 2019, this will change. Tenants will be able to enforce breaches of the HHSRS hazards themselves.
3. Landlords will need to be more proactive
Generally, landlords tend to just do things when tenants make a complaint. However, once this act comes into force landlords are advised to get things done before then. This means
- Doing careful checks during voids. The fact that damage was caused by your former tenants will not help you in a claim by new tenants. The property needs to be fit from the time they move in (assuming this is after 20 March). Following on from this
- Always allow a few days between tenancies. Do not move one tenant in a couple of hours after the last one moves out. This will allow you no time to do a proper inspection or (for example) get that plumbing problem fixed, which you discovered when you got the property back and which your tenants had not told you about. Remember – the property needs to be fit for habitation at the time your next tenants move in.
- Carrying out regular and more detailed inspections. I know that this is something landlords tend to dislike doing, as it feels so intrusive. However, if you are a landlord, you really must do regular inspections now for your own protection. Not only to make sure that there are no fitness issues, but also to check that tenants have not moved in extra occupiers which could turn your property into an HMO – which could have serious and costly implications for you.
Regular inspections are now essential for landlords. I would suggest every three months but as you can see from the comments below, others do not agree with me! If you can’t do them yourself – get an inventory firm to do it for you. But make sure they are done.
4. Detailed record keeping is essential
Again this is for your own protection.
- You should keep detailed records (and photographs) from all your inspection visits
- You should follow up oral requests to tenants (for example to keep fire escapes clear) in writing and keep a copy
- You should keep careful records of all repair and maintenance work done at the property and
- Receipts for all items purchased for the property (to prove they were purchased new and so are compliant with the fire regulations) and/or PAT records (to prove that electrical items were safe at the start of the tenancy).
- You should also retain all correspondence with tenants – including emails and texts.
For example, say you receive a complaint from a tenant saying that the property is unfit due to excessive mould and damp. If you are able to prove that the property has been let out to tenants over the past 20 years, none of whom lodged any complaint about damp and mould – then this will go a long way to back up your claim that the damp and mould is down to the tenant’s lifestyle.
Conclusion
You may be feeling worried about all this extra checking and record keeping. However, you should really have been doing this anyway.
Renting residential property is now heavily regulated. The days of the amateur landlord are over.
However if you take the trouble to keep up with the law and your legal obligations, do proper inspections and keep proper records you are unlikely to be troubled much by the authorities or face claims from your tenants.
Landlords wanting help with all this should take a look at my Landlord Law service and sign up for the free weekly bulletin.
“1. Good landlords should not suffer”
Nothing to hide, nothing to fear.
Where have we heard that one before?
I am a good Landlord but i am after 4 months still not free of the Houseing Officer, pity they do not treat the “bad” landlords the same in this town but they are too scared of them.
The boiler example is not true, I had a brand new boiler and have been forced to put in 2 extra rads and renew 2 rads which were working fine, on a ECN C property.
The works ended up costing me thousands, half of which i was planning to do as soon as the Tenants left, who had given their notice months before and were perfectly happy living there, until i threatened to go to court to get them out.
If you give me six H&S clipboard warriors, we will find Category 2 hazards in any home in the country.
Certainly the Act has been worthwhile in that it has provoked a good deal of indignant whinging from a certain cohort of vocal landlords with rather too much time on their hands, so it has had an entertainment value at least.
If your tenants are the type to make fabricated or malicious claims against you in the hopes of getting some undeserved compo or to offset rent arrears or whatever, then perhaps this is another tool in their arsenal. Although lets be honest – they would have found some other way to do so anyway.
Otherwise, it strikes me that it is generally a good thing that tenants will be better able to sue landlords (and social landlords in particular) for selling defective goods.
Well said Bob. In my work I see ‘defective goods’ being sold to tenants day in day out and there is absolutely nothing they can really do about it. This Act is a baby step in the right direction.
“If your tenants are the type to make fabricated or malicious claims against you in the hopes of getting some undeserved compo or to offset rent arrears or whatever”
Nailed it there Bob. The obvious conclusion for law abiding landlords;
*5. Don’t take on less than 100% perfect tenants in the first place.*
“Regular inspections, normally every 3 months, are now essential for landlords.”
Sorry Tessa, that is nonsense.
Why?
Because 3 monthly inspections are not the norm, are unnecessary for the vast majority of responsible tenants and is excessively intrusive.
Well, it is entirely a matter for you of course.
However, if your tenants have sublet a room to a lodger without your consent you may find that your property is now an unlicensed HMO which could cause problems and expense for you if the local authority finds out.
You will also need to make sure that the property is fit and there is no disrepair – at least the outside and common areas where you have access as you will be deemed to be aware of any issues without the need for the tenant to give notice.
But as I say – its entirely up to you.
I’m not disputing the need for inspections, only that every 3 months is not normal and is unnecessary for the vast majority of responsible tenants.
We used to carry out three monthly inspections but changed our policy after negative feedback from tenants. We now carry out an inspection in the first month, and, provided that there is no concrete reason to inspect sooner, every six months thereafter.
The tenant’s right to quiet enjoyment must be factored in.
In terms of legal risk – of a property becoming an unlicensed HMO, or of the property becoming unfit for habitation, I would hope that the authorities would consider whether or not the landlord should reasonably have had knowledge of the breach.
For the HMO issue, I do understand that failing to inspect at all might indicate a wilful ignorance (or secret consent) of the living situation in the property. But I can’t believe that a local authority would see a lack of quarterly inspections as indicative of such as, as hbWelcome says, quarterly inspections are not standard in the industry. Since Ben has experience on the other side of the fence, he might be able to paint a picture on the thinking there?
Ikram, Tessa and I dont always agree on the three month inspection. With my TRO hat on I would argue that this was intrusive and would point to the Protection from Eviction Act 1977 which defines harassment as acts that are done that are likely to cause the residential occupier to give up their accommodation.
Speaking as an individual I would regard quarterly visits as intrusive but i am also mindful of the amount of cannabis farms and unauthorised sub-lets I’ve been in where inspections werent carried out.
I like your idea of visiting after 1 month. I cant imagine would-be cannabis farming gangsters, because thats what they are, waiting for a convenient time to start watering plants. Time is money as they say.
What might throw a further spanner in the works in a project my crew, Safer Renting, is working on with the Serous Organised Crime unit of the police, in utilising s45 of the Serious Crime Act 2015 to treat, in this case, letting agents, as ‘Enablers of crime’, where properties are being used for criminal purposes. The avoidance of which would suggest more regular visits as a defence.
So at odds wh=ith each other here is the tenants rights quiet enjoyment, the possibility that the andlord’s properties may be being used for nefarious purposes.
What I have learned after 29 years in this business is that the law isnt about tick boxes, right or wrong, villain v, victim. Its far more complex and nuanced. It isnt about good/bad, and in a sense this gives me encouragement. Societies where law is defined in John Wayne terms are usually dreadful places to live.
Wrestling moral ambiguity is I think a sign of maturity.
Difficult questions might have me shouting at the TV but they are far preferable to, simplistic arguments. Look at Donald Trump
I agree that 3 month inspections are excessively intrusive and I do wonder if you stop and think twice before throwing out comments like that Tessa. Yes, you write for landlords. But those landlords have tenants (of course) and your words have consequences.
I would simply deny any private landlord their access if they were to start requesting or demanding three month inspections. But in doing that, of course, I am immediately on the back-foot with a landlord that will now start disliking me for literally being assertive and exercising my rights in law.
Being a landlord comes inherently with risk. Landlords that want to take that risk ‘out on’ tenants can think on. Because it doesn’t work like that. I note your suggestion there …
“Carrying out regular and more detailed inspections. I know that this is something landlords tend to
dislike doing, as it feels so intrusive. However, if you are a landlord, you really must do regular
inspections now for your own protection. ”
Here’s mine..
Start asking your tenants “Is everything okay at the property?” and encourage them to answer you honestly .
I suppose you might call that ‘the human approach’. It certainly saves intruding for random inspections that no tenant ever enjoys and could go a long way to fostering harmony. (I don’t doubt there really are tenants out there that will bring up the light bulbs but please just practice answering stupid questions and learn how to politely but firmly brush those aside).
I welcome the FFHH Act (of course). But until private tenants are no longer at the mercy of a section 21 this means very little for them. There simply isn’t the incentive to drag your landlord to court (and lose so many hours of time researching your legal position, too) when you have a tenancy of just 6 or 12 months. (And I’m really very tired of politicians pretending otherwise).
What about long term tenants who do not allow landlords to do repairs?
Landlords do have a right to inspect properties although not to barge in if tenants refuse them access.
However, tenants won’t get very far claiming compensation if the repair or other works would have been done months ago if only they had allowed the landlord in to do it.
There is also a possibility that a landlord may have a financial claim against the tenant if the property has deteriorated and rectification works made more expensive due to the tenant’s refusal to allow the landlord access.
I may do a separate post later specifically in inspections and frequency of inspections as it seems to arouse such passions.
My view is that every three months should be the starting point but if you have great tenants who have been there for years and keep the place spotless, then less frequent inspections will be justified. On the other hand, some HMO properties may need inspections more often.
But landlords do need to protect themselves and regular inspections is one way to do this.
You’re missing the point Tessa.
Should homes be fit for human habitation? Yes, of course.
Should tenants be subjected to mandatory 3 monthly inspections of their homes? No, they damn well should not.
Once again, lawmakers and politicians are imposing regulation without due thought of the consequences.
There is no legal requirement for 3 months, or indeed any inspections. I am not (and never have) suggested that landlords should be forced to carry out mandatory 3-month inspections.
But landlords need to carry out regular inspections to protect their position, to ensure that their properties are safe, and to check that tenants are acting within the law.
You don’t have to do any inspections at all if you don’t want to. However if, when the tenants leave, your property is found to have a cannabis farm and needs expensive repair works, you may have difficulty getting your insurer to pay up if you have not carried out regular inspections. Just one example of the problems that can arise.
But it is entirely up to you. Your choice.
“Regular inspections, normally every 3 months, are now essential for landlords.”
-Sounds unambiguous to me.
Maybe I should have worded it differently – perhaps advisable would have been a better word than essential. I’ll go and amend.
But I don’t make the law you know! Just because I recommend something you don’t have to do it. As I say – entirely up to you.
And I look forward to disagreeing Tessa haha
Speaking not as a TRO but as a temporary private tenant, if my landlord kept coming around every three months I would move. The PFEA definition of harassment is therefore fulfilled.
My understanding is that an exterior defect puts the landlord in breach the instant that it happens, not the instant they become aware of it, so for example a lightening strike on the roof would cause such an instant breach. Yes? Whilst the Local Authority may not prioritise prosecuting such a breach, a tenant with an incentive might
I think that is right, although the court will not expect landlords to carry out serious problems instantly – a reasonable time should be allowed.
But this is another reason why frequent inspections are a good idea. Although maybe some could be inspections of the outside area and common parts only to reduce intrusion on the tenants.
A lot of intel on overcrowding and strange comings and goings comes our way from reports by neighbours that lands on our desk before we even set foot in a property. Its a good way of keeping tabs as you say Tessa.
My tenancy agreements say “inspection every 6 weeks”.
I agree that 3 monthly inspections are the ideal; I tend to do these with a new tenant until I find that a little less will suffice; I do 3/4 monthly inspections on my housing benefit tenants, but again am a bit more lax when I get to know them better and can observe they are good tenants.
But if I have any doubt then I inspect the house every 3 months for sure, which I understand is the shortage time period one can unless there is an emergency.
There is no specific legislation on inspection frequency. For some types of property (eg some HMOs) even more frequent inspections may be necessary – although maybe not of the tenant’s rooms, just of the common parts.
It is a matter of common sense. But for landlords own protection I think 3 months should be the starting point.
Not directly related to the article, but in the Readers Tip from Bulletin #12:
“An annual GSI is mandatory but for a belt and braces approach, it is worth ensuring that the boiler is serviced every other year”.
In view of the new fitness for human habitation act legislation, I would second that.
This is not good advice and not in line with the principles of the HFHH. You should get the boiler serviced at least as often as recommended by the manufacturer. I do not know of any boiler where the service interval is more than a year (and neither does my brother, a Gas Safe engineer). Getting a boiler serviced half as often as recommended is not a good idea.
The amount of work required to carry out a full service compared to the CP12 checks is not high and will not add that much cost.