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, normally every 3 months, are now essential for landlords. 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.
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.