The recent (High Court) decision in Harvey v Heaver & Ors provides the first binding authority in relation to fitness for human habitation in the context of the Landlord and Tenant Act 1985 (LTA). The court has concluded that a home does not have to be demonstrably dangerous to be legally unfit. A serious inconvenience or discomfort can be enough, such that an actual Category 1 or Category 2 hazard is not required.
The message from the judgment is that “unfit” and “dangerous” are not the same. Simply because there are no Category 1 or Category 2 hazards does not necessarily the end of the matter. Landlords need to look at the actual effect that a property’s condition is having on the people living in it.
Also, landlords face a high hurdle if they seek to attribute damp and mould principally to tenant behaviour For social landlords in particular, that is an important consideration when responding to reports of damp and mould and other housing-condition issues.
The claim itself concerned a six member family living in a four-bedroom property. They brought proceedings alleging breaches of the landlord’s obligations pursuant to sections 9A and 11 of the Landlord and Tenant Act 1985 and sought a range of remedial works, temporary alternative accommodation and damages.
A single joint expert was appointed and identified numerous problems. These included damp and mould in every habitable room and in roof spaces, a damaged asbestos-containing coating on a cracked bedroom ceiling, rodent infestation and a defective septic tank and heating system.
The Court found the property unfit and ordered financial compensation together with specified remedial works.
The High Court confined its consideration to the present fitness of the property under section 9A of the LTA. This is important as it meant the historic breaches were left for later determination. Landlords should therefore be wary of treating the judgment as a complete answer to all questions about when liability under section 9A arises. Those historic breaches, were left to be dealt with separately in the County Court.
There is also an interesting practical distinction concerning the requested temporary accommodation.
Although the tenants sought an order requiring their landlord to provide and pay for alternative accommodation while works were undertaken, that application was refused. The Court found there was no default right to a landlord-funded decant in the private rented sector and that the tenants would need to establish their entitlement to alternative accommodation. The same may well be different where the landlord is a social housing provider however.
The judgment is particularly relevant to landlords dealing with damp and mould and the need for landlords to tread carefully in placing blame on the tenants. Whilst Section 9A contains protection for landlords where unfitness is wholly or mainly attributable to the tenant’s own breach of their obligations, this case makes clear that the threshold is a high one. A tenant default which is a genuine but secondary cause of the unfitness is not enough.
Another useful lesson is that landlords should not assess fitness simply by counting defects or considering how much of the property is affected. The judgment confirms that a single defect can be capable of making an entire dwelling unfit.
Matthew Lake comments that “The key message for landlords is that ‘unfit’ does not simply mean ‘dangerous’. They need to investigate the underlying cause of problems, particularly damp and mould, consider the real impact on the occupier and be cautious about relying on tenant behaviour as a defence. The consequences can also be practical, with the court able to require remedial works rather than simply award damages.”
