First and foremost, the Act came into force yesterday, the 20 March 2018, and thus hopefully all letting/managing agents and landlords reading this update have some knowledge of the requirements already.

Secondly, and of most importance, there is no need to panic even if this article comes as news to you today.  In practical terms, the vast majority of landlords and their agents will be compliant with the provisions of the Act already and without trying terribly hard. 

The Act, which is an amendment and extension to existing 30 year old provisions set out in s. 10 of the Landlord and Tenant Act 1985, requires the standard of property let to be more than “in repair”, as the 1985 Act required, but also “fit for human habitation”.

Accordingly, the Act does not require any new steps to be taken but merely a continuation of the need to ensure that the property let to tenants is, both at the commencement of the tenancy and at all times thereafter, maintained to a minimum standard.  What has changed is the definition as to what the minimum standard is.

What does “fit for human habitation” mean?

In short, fitness under the Act requires the property to be in good repair and free from defects or any of the 29 hazards identified in the Housing Health and Safety (England) Regulations 2005.  As stated above, most landlords will already be aware of whether the property let is likely to fall short of the fitness standard.  If, however, a landlord is unsure he can (but is absolutely not obliged to) commission a surveyor to report in line with the Housing Health and Safety Rating System (HHSRS).  Should such a report identify any hazards or other matters that require addressing, the landlord should promptly deal with any points raised.  

What tenancies fall within the Act?

Both new and existing tenancies granted for an initial term of less than 7 years in either the social or private rented sectors.  This extends to all tenancies and thus will include both Assured (including AST’s) and Regulated tenancies.

For tenancies granted after 20 March 2019 the rules apply immediately, whereas the landlords of tenancies granted prior to 20 March 2019 will have 12 months (until 19 March 2020) to address any issues that might cause the property to fall below the fitness standard now required.   

To what property does the Act apply?

The requirements as to condition relate to the dwelling let to the tenant and, importantly, extends to all parts of any building that that property forms part of and in which the landlord has an interest.  Accordingly, the landlord of an HMO will need to maintain to the required standard not only the flat but also all common parts (internal and external).

What will occur if a landlord fails to comply?

The Act provides to the affected tenant(s) the ability to bring a claim against their defaulting landlord within the court on the grounds that the property falls short of the requirements imposed by the Act.  For the landlord this might result in an order by the court requiring improvements to be undertaken to the property within a fixed period of time and/or the payment of compensation to the tenant. 

Currently there is no cap on the level of any compensation where it is ordered and such awards will fall to the discretion of the judge hearing the claim.  Clearly, the final award will be determined by the nature of the issue, the length of time that it has been in existence and the conduct of the landlord since he was deemed to have become aware of the problem(s).

What should landlords do next?

Any landlord should have a clear idea as to the standard of the properties that it lets or has available to be let.  If he is not already doing so himself, or by his appointed agent, then regular inspections of both the properties let and, where relevant, common parts should be undertaken and issues identified addressed promptly.

Where a landlord receives notice from a tenant of a problem then prompt action should be taken to inspect, report on and, where necessary, address that issue and the effects of it within the property or block.  Keeping the tenant fully informed of what you are doing and by when the next steps identified will be concluded, is the key approach to avoiding the escalation of mere complaints into costly disputes.

If the landlord is at all unsure as to whether he is liable to address an issue, how to address an issue or whether the proposed remedy is sufficient, he should seek the advice of a surveyor (ideally one versed in HHSRS compliance).

As always, if in doubt, ask an expert.

In the main though the issue is often one of common sense.  As professional landlords or managing/letting agents you will realistically be able to conclude for yourself if something is potentially an issue.  Accordingly, you are able to act on your own initiative in most cases, perhaps taking a cautious approach and obtaining further advice on any issue that, to you, is not 100% clear.

We have yet to see of course to what extent some tenants will seek to rely upon the Act, as a threat or with actual intent to bring a claim, as a means of obtaining compensation from their landlord.  Clear records of inspections, reports made and actions taken should therefore be a staple part of any landlord’s/agent’s management file for each property managed so that an spurious claims can be dismissed at an early stage.    

Should you have any queries in relation to this Legal Update, please contact Faye Didcote on 01435 897297 or Faye.Didcote@kdllaw.com.

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