Weapon of Choice – ‘Fit for Human Habitation’
15 June 2018
My name is George McLoughlin. I am a specialist housing Disrepair Solicitor with over 30 years in litigation practice.
I remain passionate and committed about trying to help my housing clients with the disrepair and poor conditions that they find in the homes they rent.
I often talk about the law as being akin to having an armoury of weapons that I have at my disposal; the question is what weapon should I choose to have the desired result in any particular situation – which weapon would best serve my client’s needs.
Sometimes a simple letter to a landlord might be enough – to remedy a minor problem quickly.
Sometimes, and this may well be determined by a complete lack of response from the landlord, or a very serious issue, such as a collapsed ceiling, when the only option would be to bring out your ‘bazooka’ and go immediately to the Court to try to obtain some sort of injunctive remedy. Thankfully that is still a rare occurrence.
The usual route that disrepair cases follow is to involve the less obvious but nonetheless powerful weapons which can be found under the wording of Section 11 of the Landlord and Tenant Act 1985 – which places obligations upon landlords as to how they should ‘keep in repair’ their rented homes.
In 2018 a lot of the initial behaviour of Solicitors acting for tenants and landlords (or lawyers acting for landlords) is governed by a ‘Protocol’ which was devised by Judges as to what constitutes ‘best practice’ and behaviour.
The first ‘Protocol’ came into existence back in 2003 and was slightly amended in April 2015.
I am pleased to say that I do consider this ‘Protocol’ to be somewhat Tenant friendly because it requires landlords to do a lot of running around within a relatively short period of about a month.
During that month period they are supposed to disclose all of the details of the complaint history made to them by the tenant and detail all the work they as landlords have done (or not done as the case may be).
Normally, the landlord will also arrange a visit to inspect the tenant’s home to make an assessment as to whether they may be liable – or, alternatively, whether they are going to fight the claim.
Invariably, there arguments as to why they are going to dispute this claim because it’s not their problem are twofold.
First, they often make the allegation that the first thing that they knew about the problem was when they received the letter of claim from the tenant’s Solicitor. This is quite a simple thing to determine which will be based upon an assessment of the tenant as a reliable historian and a thorough examination of the records disclosed by the landlord.
Secondly, they will blame the disrepair problems on condensation which has been caused by the ‘lifestyle’ of the tenant. They will blame tenants for not opening windows, drying their washing on radiators, boiling lots of water without lids on, and not having the heating on enough.
Unfortunately, too many times for my liking the landlord is right, and condensation which leads to black and toxic mould in rented properties is not caused by disrepair but rather by inefficient heating or a lack of effective insulation to the cold walls or floors of a house .
In those cases the weapon of s11 can be a dud and ineffective.
However, there is a real game changer weapon upon the horizon in my view. I think calling it the ‘nuclear’ option is perhaps too strong a term – but it’s up there I can assure you.
On the 19th January 2018, at the third time of asking, a private members bill by Karen Buck, a Labour MP, appears to have succeeded in redressing the balance of the law for tenants faced with condensation and black mould issues – that landlords currently are not required and therefore don’t do doing anything about.
On this occasion the Government managed to perform a complete political U-turn to their previous position. Whether or not that was because they wanted some positive publicity following Grenfell may just be this Solicitor’s cynical interpretation of events; but that does not in any denigrate from the tremendous work and perseverance shown by Karen Buck, or the positive impact that this change is going to have on the lives of millions of tenants.
At the time of writing this article I have just learnt that the 20th June has been fixed for a Committee hearing which the next step is in the parliamentary process.
With a fair wind and continued cross-party support it may become law before the end of the year.
So, what is this change?
Simply. It is to read into tenancy agreements a term that rented properties should ‘..be fit for human habitation.’
In my view the most surprising and equally disturbing aspect of all of this is that this provision can already be found in the 1985 Act – so it’s been around for over 30 years – but it is so limited in its current criteria that I doubt if it was ever been relied upon.
Anyway, let’s not dwell on a wasted opportunity let us concentrate on what this might mean for tenants.
I can foresee Courts ordering landlords to insulate walls and floors, install up to date heating systems, and improve the ventilation to their rented properties – the key will be to eradicate cold homes - all of which will mean a vast improvement to the quality of life to tenants and their families – particularly the most vulnerable ones.
I am really looking forward to unleashing my new weapon – hopefully before the end of the year.
Landlords you had better watch out!
George McLoughlin is as Solicitor and member of Liverpool Law Society Civil Litigation Committee.
Head of Housing Disrepair at Curtis Law Solicitors LLP