Fitness for human habitation

The law implies an obligation in every new tenancy that the dwelling:

• is ‘fit for human habitation’ at the time the lease is granted, and

• will remain ‘fit for human habitation’ during the term of the lease

Wales

From 1 December 2022, all properties (also known as ‘dwellings’) rented out under an occupation contract must be fit for human habitation in accordance with the Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022 and Renting Homes (Wales) Act 2016.

It is important to note that occupation contracts are a wider category of letting documents than tenancy agreements in England. As a result, in Wales, those renting property on a licence (eg lodgers) may be covered by the rules on FFHH if they have an occupation contract. Here, the focus lies on the letting document rather than the legal status of the person occupying the property.

For more information, read Occupation contracts in Wales and do not hesitate to Ask a lawyer if you have any questions.

'Fit for human habitation' means the property must be safe, healthy and free from things that could cause serious harm. These include, but are not limited to, any issues connected to:

• neglect of the building or the building being in a bad condition or unstable

• serious problem with dampness and mould

• an unsafe layout

• not enough natural light or ventilation

• problems with the supply of hot and cold water

• problems with the drainage or the lavatories

• any difficulty in preparing or cooking food and cleaning

Other issues include excess cold or heat, radiation, lead, uncombusted fuel gas, crowding and space, entry by intruders, noise, food safety, electrical hazards, fire and fire safety, personal hygiene, sanitation and drainage.

You can find the 29 hazards listed on the Government website. The Welsh Government website also provides detailed guidance on the 29 hazards.

If there are any issues with the property, the tenant should first speak to their landlord.

Landlords should be notified of any defects that arise in the property while it is rented out. They should then be allowed a reasonable time to fix these defects. The reasonable time to fix the issue will vary based on the severity of the issue. If the landlord does not respond (in a reasonable time) the tenant may take action against the landlord.

England

Before bringing a court claim, the tenant will need to consider whether the problem makes the house or flat unfit to live in. They should also check if there may be a reason why the landlord has not resolved the issue (eg because they have not been able to access the property).

A tenant can take their landlord to court if the property is not fit for human habitation. The court could order a landlord to carry out repairs to address the problem or it may order the landlord to pay compensation and legal costs. For more information on the court process, see the Government’s guidance.

Even if the legislation does not apply to a tenancy, but the tenant has any of the issues mentioned above, they can contact their local council who can take action on their behalf.

Wales

Occupation contracts may include a term allowing contract holders to withhold rent for periods during which the dwelling was not fit for human habitation. Contract holders should check their contracts and see what they say before carefully considering whether withholding rent is a sensible choice. As their landlord (and ultimately the court) may decide that the dwelling is in fact fit for human habitation, contract holders may find themselves in rent arrears and subject to potential possession proceedings if they unjustifiably withhold rent. If a contract holder decides to withhold rent, they should consider setting the money required for this rent aside in case of any later issues.

Contract holders may also make an application to the courts, asking them to determine whether the dwelling is fit for human habitation. This may involve the contract holder providing evidence to the court (eg a surveyor confirming that the property is unfit). If a court finds that a dwelling is unfit for human habitation, they can order the landlord to improve the dwelling. The contract holder may also apply for damages for any injuries caused by the problem (ie ask the court to order their landlord to compensate them for the dwelling being unfit).

For more information, see the Welsh Government’s guidance.

As the law gives tenants more power to take landlords to court a few practical steps private landlords can take to ensure their properties are fit for human habitation include:

• allowing enough time before the next tenant moves in to make sure the property is ‘fit for human habitation’

• making regular inspections and checking the condition of the property, especially between letting the property to different people

• keeping detailed records (including photos) of any inspection visits as well as repairs and maintenance work done to the property 

• keeping all correspondence with tenants and following up on any complaints they make

The legal requirements apply not only to the dwelling let to a particular tenant, but also to any parts of any building it forms a part of, in which the landlord has an interest. This includes the common parts of a house in multiple occupation (HMO) (such as the kitchen or bathrooms) or block of flats owned by the landlord.

Local authorities do not usually enforce this law, but it allows tenants to bring court actions directly against the landlord without first involving the council. A judge can decide whether a property is unfit for human habitation based on the evidence provided. However, informal letters from the council may be useful to a tenant who is looking to take action.

More information on fitness for human habitation for landlords in England can be found on the Government website. Landlords in Wales can find out more on the Welsh Government website.