In respect to the definition of habitability by HMRC, they have stated:
“A dwelling-house is a building, or a part of a building; its distinctive characteristic is its ability to afford to those who use it the facilities required for day-to-day private domestic existence.”
In the P N Bewley Ltd v Revenue & Customs Case, it was determined that a property’s habitability is a key factor in determining whether it can be classified as residential for stamp duty purposes. This case established a precedent for distinguishing between “residential” and “non-residential” properties by HMRC. As per this ruling, a property will be considered residential for stamp duty purposes if it is considered “liveable” or “habitable.”
Although HMRC doesn’t publicly provide definitions for the terms ‘livability’ or ‘habitability’, The Homes (Fitness for Human Habitation) Act 2018 serves as guidance for determining these definitions.
UK Government guidance on this legislation states:
“Your landlord must make sure that your home is ’fit for human habitation’, which means that it’s safe, healthy and free from things that could cause you or anyone else in your household serious harm. For example, if your house or flat is too cold and you can’t heat it, this can affect your health.”
The guidance then lists a number of issues covered by this act.
- the building has been neglected and is in a bad condition
- the building is unstable
- there’s a serious problem with damp
- it has an unsafe layout
- there’s not enough natural light
- there’s not enough ventilation
- there is a problem with the supply of hot and cold water
- there are problems with the drainage or the lavatories
- it’s difficult to prepare and cook food or wash up
There is a problem with any of the following 29 things:
- damp and mould growth
- excess cold
- excess heat
- asbestos and manufactured metal fibres
- biocides (chemicals that treat mould)
- carbon monoxide
- radiation (from radon gas, which is airborne or in water)
- uncombusted fuel gas (leaks in gas appliances)
- volatile organic compounds (chemicals which are gases at room temperature)
- crowding and space
- entry by intruders (such as not having a lock on your front door)
- domestic hygiene, pests and refuse (including inadequate provision for disposal of waste water and household waste)
- food safety
- personal hygiene, sanitation and drainage
- water supply
- falls associated with bath or shower
- falls associated with stairs and steps
- falls on the level (danger of falling on a flat surface)
- falls between levels (danger of falling from one level to another, for example, falls out of windows)
- electrical hazards
- fire and fire safety
- hot surfaces and materials
- collision and entrapment
- physical strain associated with operating amenities (i.e. very heavy doors)
- structural collapse and falling elements
We have written a detailed guide to all of these condition issues here.
In our experience, property is not ‘livable’ if there is a health or injury risk or the occupant is unable to use the property’s amenities required for day-to-day domestic existence.
Homes (Fitness for Human Habitation) Act 2018. Original copy here.
Our comment: The Homes (Fitness for Human Habitation) Act 2018 is a law that amends the Landlord and Tenant Act 1985 in England and Wales. The amendment requires that residential rented accommodation is provided and maintained in a state of fitness for human habitation. This means that landlords must ensure their properties are safe and free from hazards, and tenants have the right to take legal action if their landlord fails to meet these standards. The law also sets out specific requirements for implied covenants, lease agreements, and court orders related to the fitness for human habitation of a dwelling. The Act came into force on 20th December 2018.
2018 CHAPTER 34
An Act to amend the Landlord and Tenant Act 1985 to require that residential rented accommodation is provided and maintained in a state of fitness for human habitation; and for connected purposes.
[20th December 2018]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1 Fitness for human habitation
(1) The Landlord and Tenant Act 1985 is amended in accordance with subsections (2) to (5).
(2) In section 8 (implied terms as to fitness for human habitation)—
(a) in the heading, after “habitation” insert “: Wales”;
(b) in subsection (1), after “house”, in the first place it occurs, insert “in Wales”.
(3) After section 9 (application of section 8 to certain houses occupied by agricultural workers) insert—
9A Fitness for human habitation of dwellings in England
Our comment: This section applies to leases of dwellings in England and implies that the dwelling is fit for human habitation at the time of the lease and during the term of the lease. However, the lessor is not required to carry out repairs that the lessee is liable for, rebuild the dwelling after damage or maintain anything that the lessee is entitled to remove. The lessor is also not liable for unfitness caused by the lessee’s breach of covenant or disrepair that the lessor is not obliged to fix. Any provision in the lease that attempts to exclude or limit the lessor’s obligations under this covenant is void. The court may order specific performance of the obligation, and the lessee must permit the lessor to enter the dwelling to view its condition and state of repair with reasonable notice.
(1) In a lease to which this section applies of a dwelling in England (see section 9B), there is implied a covenant by the lessor that the dwelling—
(a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and
(b) will remain fit for human habitation during the term of the lease.
(2) The implied covenant is not to be taken as requiring the lessor—
(a) to carry out works or repairs for which the lessee is liable by virtue of—
(i) the duty of the lessee to use the premises in a tenant-like manner, or
(ii) an express covenant of the lessee of substantially the same effect as that duty;
(b) to rebuild or reinstate the dwelling in the case of destruction or damage by fire, storm, flood or other inevitable accident;
(c) to keep in repair or maintain anything which the lessee is entitled to remove from the dwelling;
(d) to carry out works or repairs which, if carried out, would put the lessor in breach of any obligation imposed by any enactment (whenever passed or made);
(e) to carry out works or repairs requiring the consent of a superior landlord or other third party in circumstances where consent has not been obtained following reasonable endeavours to obtain it.
(3) The implied covenant is also not to be taken as imposing on the lessor any liability in respect of the dwelling being unfit for human habitation if the unfitness is wholly or mainly attributable to—
(a) the lessee’s own breach of covenant, or
(b) disrepair which the lessor is not obliged to make good because of an exclusion or modification under section 12 (power of county court to authorise exclusions or modifications in leases in respect of repairing obligations under section 11).
(4) Any provision of a lease or of any agreement relating to a lease (whether made before or after the grant or creation of the lease) is void to the extent that it purports—
(a) to exclude or limit the obligations of the lessor under the implied covenant, or
(b) to authorise any forfeiture or impose on the lessee any penalty, disability or obligation in the event of the lessee enforcing or relying upon those obligations.
(5) Where in any proceedings before a court it is alleged that a lessor is in breach of an obligation under the implied covenant, the court may order specific performance of the obligation (regardless of any equitable rule restricting the scope of that remedy).
(6) Where a lease to which this section applies of a dwelling in England forms part only of a building, the implied covenant has effect as if the reference to the dwelling in subsection (1) included a reference to any common parts of the building in which the lessor has an estate or interest.
(7) In a lease to which this section applies of a dwelling in England, there is also implied a covenant by the lessee that the lessor, or a person authorised in writing by the lessor, may enter the dwelling for the purpose of viewing its condition and state of repair.
(8)The covenant implied by subsection (7) requires entry to the dwelling to be permitted—
(a)only at reasonable times of the day, and
(b) only if at least 24 hours’ notice in writing has been given to the occupier of the dwelling.
(9) In this section—
- “common parts” has the meaning given by section 60(1) of the Landlord and Tenant Act 1987;
- “lease” does not include a mortgage term;
- “lessee” means the person for the time being entitled to the term of a lease;
- “lessor” means the person for the time being entitled to the reversion expectant on a lease.
9B Leases to which section 9A applies
Our comment: Section 9A of the Homes (Fitness for Human Habitation) Act 2018 outlines the circumstances in which the section applies to a lease for a dwelling. The section applies to leases of less than 7 years or certain secure, assured, or introductory tenancies. The section does not apply to any leases that are specifically mentioned in section 14. In addition, the section does not apply to leases granted before the commencement date of the act or leases that were renewed before the commencement date. However, it does apply to periodic or secure tenancies that are already in existence on the commencement date. The section provides several specific rules for determining whether a lease is for a term of less than 7 years.
(1) Section 9A applies to a lease under which a dwelling is let wholly or mainly for human habitation if either of the following applies—
(a) the lease is for a term of less than 7 years, or
(b) the lease is of a kind mentioned in subsection (1A) or (1AB) of section 13 (leases to which section 11 applies: secure, assured or introductory tenancies for fixed term of 7 years or more).
This is subject as follows.
(2) Section 9A does not apply to any lease of a kind mentioned in section 14 (exceptions for leases to which section 11 applies).
(3) Except as mentioned in subsections (4), (5) and (6), section 9A does not apply to a lease granted—
(a) before the commencement date, or
(b) on or after that date in pursuance of an agreement entered into, or an order of a court made, before the commencement date.
(4) Section 9A applies to a periodic or secure tenancy that is in existence on the commencement date, but in the case of any such tenancy the covenant implied by that section has effect in the following way—
(a) subsection (1)(a) of that section has effect as if the reference to the later of the times there mentioned were a reference to the time that begins at the end of the period of 12 months beginning with the commencement date, and
(b) subsection (1)(b) of that section has effect only in respect of times falling after the end of that 12 month period.
(5) Section 9A applies to a periodic or secure tenancy that comes into existence after the commencement date on expiry of a term of a lease granted before that date.
(6) Section 9A applies to a lease for a fixed term which—
(a) is granted or renewed before the commencement date, and
(b) is renewed for a further fixed term on or after that date,
and for this purpose the renewal on or after the commencement date is to be treated as a grant of the lease on or after that date.
(7) For the purposes of subsection (1) it is immaterial—
(a) whether the dwelling is to be occupied under the lease or under an inferior lease derived out of it, or
(b) that the lease also demises other property (which may consist of or include one or more other dwellings).
(8) In determining for the purposes of subsection (1)(a) whether a lease is for a term of less than 7 years—
(a) any part of the term falling before the grant or creation is to be ignored and the lease is to be treated as a lease for a term commencing with the grant or creation;
(b) a lease which is determinable at the option of the lessor before the expiry of 7 years from the commencement of the term is to be treated as a lease for a term of less than 7 years;
(c) a lease (other than one to which paragraph (b) applies) is not to be treated as a lease for a term of less than 7 years if it confers on the lessee an option for renewal for a term which, together with the original term, amounts to 7 years or more.
(9) In this section—
- “the commencement date” means the date on which the Homes (Fitness for Human Habitation) Act 2018 comes into force;
- “lease”, “lessee” and “lessor” have the same meanings as in section 9A;
- “secure tenancy” has the meaning given by section 79 of the Housing Act 1985.
9C Application of section 9A to certain dwellings occupied by agricultural workers
Our comment: This section applies to the provision of housing for agricultural workers where the provision of housing is part of the worker’s compensation, and section 9A is not applicable because the worker is not renting the dwelling. The contract of employment must include a term that is the equivalent of the covenant that would be implied by section 9A if the dwelling was rented under a lease to which section 9A applies. The provisions of section 9A apply with necessary modifications, and this does not affect other repair obligations or enforcement remedies. The existing text of section 10 becomes subsection (1), and the new subsection (2) defines “prescribed hazard.”
(1) This section applies where under a contract of employment of a worker employed in agriculture—
(a) the provision of a dwelling for the worker’s occupation forms part of the worker’s remuneration, and
(b) the provisions of section 9A (implied term as to fitness for human habitation of dwellings in England) are inapplicable by reason only of the dwelling not being let to the worker.
(2) There is implied as part of the contract of employment (in spite of any stipulation to the contrary) a term having the same effect as the covenant that would be implied by section 9A if the dwelling were let by a lease to which that section applies.
(3) The provisions of section 9A apply accordingly—
(a) with the substitution of “employer” and “employee” for “lessor” and “lessee”, and
(b) with such other modifications as may be necessary.
(4) This section does not affect—
(a )any obligation of a person other than the employer to repair a dwelling to which the covenant implied by section 9A applies by virtue of this section, or
(b) any remedy for enforcing such an obligation.”
(4) In section 10 (fitness for human habitation)—
(a) the existing text becomes subsection (1);
(b) in that subsection—
(i) after “house”, in both places where it occurs, insert “or dwelling”;
(ii) after “facilities for preparation and cooking of food and for the disposal of waste water;” insert—
- “in relation to a dwelling in England, any prescribed hazard;”;
(c) after that subsection insert—
“(2) In subsection (1) “prescribed hazard” means any matter or circumstance amounting to a hazard for the time being prescribed in regulations made by the Secretary of State under section 2 of the Housing Act 2004.
(3) The definition of “hazard” in section 2(1) of the Housing Act 2004 applies for the purposes of subsection (2) as though the reference to a potential occupier were omitted.”
(5) In section 39 (index of defined expressions), after the entry in the list for “lease, lessee and lessor (generally)” insert—
|“(in the provisions relating to fitness for human habitation of dwellings in England)||section 9A(9)”.|
(6) In section 302 of the Housing Act 1985 (management and repair of houses acquired under section 300 or retained under section 301), in paragraph (c)—
(a) for “section 8” substitute “sections 8 and 9A”, and
(b) for “does” substitute “do”.
2 Extent, commencement and short title
(1) This Act extends to England and Wales.
(2) This Act comes into force at the end of the period of three months beginning with the day on which it is passed.
(3) This Act may be cited as the Homes (Fitness for Human Habitation) Act 2018.