If you ask someone in the street ‘should residential accommodation be fit for human habitation?’ the answer in all probability will be ‘of course’. The question has a certain logical consistency. If you decide something is ‘unfit for human habitation’ you would imagine that there are absolute rules to prevent a human from living in it, and that someone seeking to profit from such accommodation would be liable to damages at least. If only life was so clear.
130 years ago, in 1885, Parliament in its wisdom first decided that residential accommodation that is rented out should be ‘fit for human habitation’ by passing the Housing of the Working Classes Act. Incorporated into subsequent pieces of legislation, the provision is now contained in the 1985 Landlord and Tenant Act (section 8).
The problem with this apparently progressive Victorian legislation was that it tied the definition to rent limits which, unsurprisingly, have come to mean nothing due to inflation. The present rent limits are £40 for a contract prior to 1957 and £80 for a contract since 1957 (in London; £26 and £52 respectively elsewhere). I suspect anyone finding a home for rent at even £80 would be overjoyed – and here we are talking per annum and not per week.
This weakness has been spotted before. In 1996 the Law Commission called for the rent caps to be removed, a proposal supported in principle by the Court of Appeal, which remarked on the unsatisfactory state of the law when tenants are “…wholly without remedy in the civil courts against their landlords, however grievously their health may have suffered because they are living in damp, unfit conditions…” (Issa v Hackney London Borough Council (1997) 29 H.L.R. 640).
There are of course other statutory provisions which impinge on housing standards, but, for various reasons, they are all insufficient for ensuring that properties are fit for human habitation. I am grateful to the excellent Housing Law Practitioners Association for the following explanation:
(a) The primary repairing obligation imposed on landlords is s.11, Landlord and Tenant Act 1985. This requires the structure and exterior of the property to be maintained, as well as any equipment for e.g. supply of heating or hot water. The difficulty with this is that it does not assist where a property is uninhabitable due to a design defect, so long as the structure is sound.
(b) The provisions of Part 1, Housing Act 2004 allow local authorities to serve notices on landlords which, if appropriate, can require remedial works to be carried out. This remedy is insufficient, however, since it is dependent on a properly resourced enforcement regime in each local authority area and, in any event, cannot be used where the local authority is itself the landlord.
(c) The possibility exists of a tenant bringing a private prosecution for a statutory nuisance under the Environmental Protection Act 1990. The unreality of leaving a tenant to prosecute his landlord is obvious.
Today, Karen Buck, MP for Westminster North – an area with a long history of unfit housing going back to Rachman and beyond – introduced a private members’ Bill, The Homes (Fitness for Human Habitation) Bill, which seeks to remedy the long term neglect of what should be a basic provision in housing law. The Bill’s core provision is to abolish the rent limits. Tenants would be able to claim redress for a breach of an implied term of the tenancy by suing for damages or getting an injunction, avoiding the current dependence on a local authority serving a notice. The procedure to be used by the tenant follows that already in use for repairing obligations.
The Bill modernises the definition of what constitutes unfitness by adding Category 1 hazards under the 2004 Housing Act to the list of factors. HLPA point out that this would ensure that, for example, Category 1 carbon monoxide poisoning would now be included. The Bill provides necessary protection for landlords where the cause of unfitness is due to the actions of the tenant or a natural disaster or phenomenon, and it makes clear that the landlord is not liable for property owned by the tenant.
As a specific but important clarification of the law, this appears to be a perfect topic for a private members’ Bill. And who could be opposed to it? We shall soon see.