As one year turns to the next it is tempting to write a piece with some of the stories that haven’t made it into the main blog during the year, and this is one of those pieces.
This would have made the main blog anyway, except it was enacted on 20th December 2018 and so was too late for the year. It is a short and comparatively simple piece of legislation which more or less does what it says on the tin.
Very briefly, it imposes an obligation on the landlord of a residential lease of less than 7 yearsof a dwelling in England that the dwelling is fit for human habitation when the lease is granted, and will remain fit for human habitation throughout the length of the lease. It works alongside the obligations in s11 Landlord & Tenant Act 1985 which require landlords of short residential leases:
(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),
(b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and
(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.
The new Act expands the obligation so as to include things which are not matters of repair as such as natural lighting and internal arrangement. The factors which a court has to take into account in deciding whether the property is fit for human occupation are set out in s10:
In determining for the purposes of this Act whether a house is unfit for human habitation, regard shall be had to its condition in respect of the following matters—
freedom from damp,
drainage and sanitary conveniences,
facilities for preparation and cooking of food and for the disposal of waste water;
in relation to a dwelling in England, any prescribed hazard;
and the house shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.
There are the usual exceptions for unfitness caused by the tenant’s breach of obligations, or to carry out works that are prohibited by legislation (eg planning and listed-building laws) or for which he needs consent from a third party (eg a neighbour) and despite reasonable endeavours has not been able to get it.
The remedy is in the County Court, and because of s17 of the 1985 Act the court has wide powers to order specific performance as well as awarding damages.
The Act applies to all new tenancies granted on or after the commencement date – 20th March 2019, including the periodic tenancies that arise at the end of a fixed-term, and to all periodic tenancies from 20th March 2020.
This is only a short note. The Act was heavi;y supported by Giles Peaker, and there is a much more detailed note on his blog Nearly Legal.
McDonald v McDonald – application in the ECHR
I covered this case when it was in the Supreme Court here. The losing party had applied to the ECHR, arguing that there was a right to review the proportionality of any possession claim if it was based on mandatory grounds – in this case s21 Housing Act 1988.
The ECHR rejected the application as inadmissible, basically on the same grounds that the SC had used. The Convention is not directly enforceable in a dispute between two inividuals, and so a contractual or statutory claim such as this one is not subject to claims for proportionality. It would be different if a public body was involved (such as the Pinnock case). But the national courts were entitled to apply national legislation, such as s21, which drew a line between the competing rights of two individuals, and the ECHR would not interfere.
There is, as ever, a much more detailed note on Nearly Legal.
Consultation for a new Housing Court
The Government has launched a consultation on whether a new Housing Court should be formed and all submissions need to be in by 22nd January 2019 – further details here.
Superficially there would appear to be a lot to be said for a court full of specialists who could deal with possession claims in residential cases, disputes over deposits, harrassment and eviction claims, injunctions seeking access to residential properties and so on.
However, the leading suggestion is that this should be based on the First Tier Tribunal (Property Chamber), and although these tribunals have a lot of expertise big problems arise because they do not award costs in most cases, have no provision for Legal Aid, and cannot grant injunctions. This would seriously restrict the ability of many tenants to enforce their rights. Landlords generally attend the FTT with lawyers, and unless tenants can have Legal Aid, or have the possibility of No-Win No-Fee assistance from solicitors (which requires the payment of costs by the loser) then the system is going to be very unfair.
And although the FTT has some spare capacity at present, they really will not be able to cope with the current 120,000 possession cases a year, let alone other housing matters.
This clearly isn’t straightforward. There are articles pointing both ways by Nearly Legal, and by David Smith of the RLA, and a more recent one from Nearly Legal, so you need to think about it and then have your say by 22nd January 2019.
And a Happy New year to you all.