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Your Property Condition – Our Complex Laws
23 – 35 minutes to read
In this guide
- Introduction
- Civil Claims
- The statutory repairing ‘covenants’
- Fitness for Habitation
- The Defective Premises Act 1972
- Clauses in your tenancy agreement
- Common Law Rights
- Claims brought under the criminal law
- The Housing Health and Safety Rating System
- The Gas Regulations
- The Electricity Regulations
- Regulations regarding energy efficiency
- HMO Managaement Regulations
- And finally
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1. Introduction
Many rented properties are in good, often in splendid condition. However sadly, many others are not.
What are your rights as a tenant if your property condition is sub-standard and what you can do to enforce your rights?
Unfortunately, this area of law is extremely complicated with a number of interlocking laws and regulations. We will try in this article to put them in order for you but there is no disguising the fact that this is a difficult area of law.
To start with we should explain that there are two types of law that apply:
- Laws under the ‘civil’ law system where you can claim directly against your landlord, and
- Laws under the ‘criminal’ law system where your landlord will be punished (normally this is by way of a fine) for failing to comply with their legal obligations. Incidentally, claims, or rather prosecutions, under the criminal law are normally brought by Local Authorities rather than the tenants themselves. The Police are rarely involved.
Let’s look first at the civil law remedies which allow tenants to claim directly against their landlords.
2. Civil Claims
If you have a civil claim then this needs to be brought by you as the ‘claimant’.
Normally this will be in the County Court but if you have a very expensive posh house and your claim is a very large one, it could be in the High Court.
You will have to pay court fees, which will depend on the value of your claim.
However, before you actually issue proceedings you will have to comply with the Pre-Action Protocol for Housing Conditions Claims (England) (if your property is in England. Or the equivalent pre-action protocol if your property is in Wales.
The protocols set out a procedure which you need to follow before issuing proceedings which is essentially
- Use some form of alternative dispute resolution if you can
- Send letters outlining your claim
- Instruct a single joint expert to advise on the claim, and then
- Take stock and see if the matter can be resolved without going to court.
It is always a good idea to try to reach an agreement with your landlord if you can, as going to court is inevitably a slow and expensive business.
Plus the court will expect you to resolve your matter by negotiation if you can and Judges will frown upon cases brought in a ‘gung ho’ manner as being a waste of Court time.
Get legal advice before you start
Before doing anything though you should obtain proper legal advice as this sort of claim is difficult and easy to get wrong unless you really know what you are doing. For example if you issue proceedings but then find that they are unviable, you could be ordered to pay your landlords legal costs – which could be quite expensive if there has been a hearing.
Note that you do not need to follow the pre-action protocol if you are bringing a claim for compensation for disrepair as a defence to a claim brought by your landlord for rent arrears, for example an eviction claim based on rent arrears. However, even here is it important that you take proper legal advice so your paperwork can be drafted up properly.
You will find sources of help in our article on further advice services.
Before you do anything
You should first read through the rest of this article carefully as it sets out the various areas of law which collectively make up your legal rights.
You should also read our collection of premium articles which go into greater detail on the statutory repairing covenants and fitness for human habitation legislation and give preliminary guidance if you want to make a claim (including information about the amount and types of compensation you can claim)
You will also find a useful Government Guide linked below which talks you through the various situations which may arise and provides guidance on your rights.
Let’s now go through the various laws and regulations which will allow you to bring a civil claim.
3. The statutory repairing 'covenants'
A ‘covenant’ generally means some form of legal agreement or a clause in a contract.
The ‘statutory repairing covenants’ are perhaps the best known of the various laws and regulations surrounding the condition of a tenants property.
They are set out in section 11 of the Landlord & Tenant Act 1985 and provide for landlords to be responsible for keeping in repair:
- The structure and exterior of a property, and
- The installations for the supply of water, gas and electricity and for sanitation, and
- The installations for space and water heating.
These rules are implied into all tenancy agreements where a tenant is renting a property where the fixed term is less than seven years. They cannot be excluded by any contract term.
The repairing covenants have helped many tenants but do not cover everything. For example, if something in a property is in poor condition or defective but not actually in disrepair – the statutory repairing obligations cannot be used.
Note that section 11(6) of the act provides for the landlord to be entitled to enter the property for the purpose of viewing its condition and state of repair, provided the landlord has given you not less than 24 hours notice in writing.
For more detailed information about landlords statutory repairing obligations see our premium article.
4. Fitness for Habitation
As mentioned above, the big problem with the statutory repairing covenants was that they only covered ‘disrepair’. So a property could be in a shocking condition but if nothing was actually in need of repair (ie broken) there was not much the tenants could do about it.
This was resolved in 2018 with the passing of the Homes (Fitness for Human Habitation) Act 2018. Note that it only applies in England as Wales is developing its own separate laws on this.
What the act does is amend the Landlord and Tenant Act 1985 (the same act that contains the repairing covenants discussed above) by bringing in new legal obligations for landlords.
The act came into force (in England) on 20 March 2019.
Basically, the new rules require a property to be ‘fit for human habitation’ both at the start and throughout the tenancy.
To find a property ‘unfit’ is a serious matter and tenants will not be able to use this legislation for trivial matters such as a cracked window pane. There is a list of things that need to be taken into account set out in the legislation plus the ‘hazards’ in the Housing Health and Safety Rating System discussed below will also apply.
However, this new legislation finally allows tenants to take action for serious damp and mould cases where they are not responsible, but where the problems are not caused by ‘disrepair’, for example where the problem is caused by the design of the property.
Even so, these will be tricky claims to bring so if you are considering taking action against your landlord you should always take legal advice first. See also our premium article.
5. The Defective Premises Act 1972
This older legislation is mainly concerned with obligations placed on builders when building a property.
However, it does have some application to tenancy law, in particular sections 1 and 4.
Section 1
This places a duty on anyone building a property or (and this is where the section affects landlords) doing work ‘for or in connection with the provision of a dwelling’ where the work is either building something new or converting or enlarging an existing building, in order to create a new dwelling. The duty is to
- Do the work in a professional manner
- Use proper materials, and
- Make sure it is fit for human habitation when finished
Note that this only applies where a new dwelling is created. So it will apply to a landlord building an extension so this can be rented out as a new home but not to a landlord simply enlarging an existing rented property.
There is a strict time limit for bringing claims and during this period the landlord or builder remain liable even if the property has been sold on.
Section 4
This section (like the statutory repairing covenants) requires a landlord to keep a property in repair. The difference is that if the problem is something the landlord should have known about then he will still be liable even if he did not actually know about it.
This is one reason why landlords need (and should) carry out regular inspections and the statute assumes that this is something responsible landlords will be doing.
However, if the reason the landlord is not doing inspections is that you won’t let him in to do them – you will not be able to claim under section 4. As the court will not allow you to take advantage of your own breach of contract.
6. Clauses in your tenancy agreement
If your property is not being maintained properly, you also need to look at your tenancy agreement to see what your landlord has promised to do.
Many tenancy agreements will only include the ‘statutory repairing covenants’ which are implied into all relevant tenancy agreements (and cannot be excluded). However, you may find that your landlord is liable for additional repairing obligations under the terms of the tenancy agreement.
For example, some landlords agree to be responsible for repairing kitchen ‘white goods’ or to widen the statutory obligations.
If you are not sure what the clauses in your tenancy agreement mean (and this can be quite technical) you should get some legal advice. You can either speak to a solicitor using our telephone advice service or find someone else using our further advice article.
7. Common Law Rights
Finally, let’s take a look at what your rights are under the common law (explained here).
Common law rights are less easy to pin down than rights under statute or under the terms of your tenancy agreement but they do exist. The most important being the covenant for quiet enjoyment.
The Covenant for Quiet Enjoyment
This is the classic example of a term used in law which means something completely different from what non-lawyers would imagine.
Its nothing to do with being quiet or enjoying yourself. Or rather it can mean those things but that’s not really what it is about.
What it is, is the right for tenants to live in their rented property without interference by their landlord.
The reason why we are discussing this in an article about the property condition is that a landlord can be held to have breached a tenants ‘covenant of quiet enjoyment’ by allowing the property to deteriorate so that it interferes with the tenant’s ability to use it (or to use the old fashioned language of law ‘enjoy’ it) properly. So it is often cited as a ‘head of claim’ in tenants legal proceedings against their landlords for disrepair.
The covenant for quiet enjoyment is a very important right that tenants have – indeed there is a whole book written about it!
Other common law rights include
- A duty on landlords who own neighbouring property to take reasonable care of it so it does not adversely affer their tenants. For example as regards roofs of blocks of flats, common halls, shared water tanks and the like.
- Under negligence – the law of negligence goes not normally apply to landlord and tenants situations but it can apply where the landlord is the builder and to works done after the tenancy has started.
- The law of nuisance – the most common example of this is pest infestation. For example, if pests enter through the service ducts in the common parts of a property.
Common law rights tend not to be used on their own, but they are often cited in claims against landlords and add generally to a tenants armoury of rights.
Premium Articles
The Property Condition Premium Articles
A collection of three articles looking in greater detail at the (1) repairing covenants and (2) fitness for human habitation and (3) giving preliminary guidance on bringing a claim. Essential reading if your home is in poor condition and you are considering bringing a civil claim for compensation against your landlord.
8. Claims brought under the criminal law.
Much of the law relating to the condition of tenanted property falls under criminal law rather than civil law.
The main enforcing bodies here are Local Authorities / Councils (you can find your Local Authority here). They have the right to enter properties to carry out inspections, can serve improvement and other notices if properties are found to be substandard and then if landlords do not deal with their requests, can impose various sanctions and civil penalties as well as bringing prosecutions, usually in the Magistrates Courts.
When you say ‘the criminal law’ most people think of the Police. However, the Police and the Crown Prosecution Service rarely get involved in housing issues. Indeed, the Police are for the most part ignorant of housing law and tenants who have appealed to them in the past have frequently had a poor response.
So, if your rented property is in poor condition and you want something done about it, sometimes the best and cheapest solution is to speak to someone at your Local Authority.
The downside is that Councils are underfunded and understaffed, so it may take a long time for them to do anything.
However, the reports and findings made by Council Officers can be very useful for you if you decide to bring your own claim in the Civil Courts later!
Let’s now take a look at some of the legislation and regulations which apply.
9. The Housing Health and Safety Rating System
This is the system used by local authorities to assess whether residential properties present risks to the health or safety of the people living in them. Inspections are normally carried out by Environmental Health Officers (EHOs) or Private Sector Housing Officers.
It was introduced by the Housing Act 2004, which repealed the fitness standards which came before.
The Housing Health and Safety Rating System (HHSRS) assesses properties against 21 prescribed hazards, ranging from damp and mould through to fire safety, electrical hazards and excess cold.
- If the council identifies a Category 1 hazard, it is under a duty to take enforcement action.
- If it identifies a Category 2 hazard, it has the power to take action but is not required to do so.
There are several enforcement options. The most common is an Improvement Notice requiring the landlord to carry out specified works.
In more serious cases, the council may prohibit occupation of all or part of the property, carry out emergency remedial works itself or, in exceptional cases, make a demolition order. Landlords who fail to comply with enforcement action may face prosecution or financial penalties.
The assessment process is rather technical, and few apart from EHOs understand the details. If you want to find out more about the HHSRS, the penalties for non-compliance and the individual hazards, there is a useful government guide here.
Although HHSRS can be used to assess any residential property, it is most commonly used by councils when dealing with complaints about privately rented homes.
The HHSRS hazards are also taken into account by the courts when deciding whether a property is fit for human habitation under the Homes (Fitness for Human Habitation) Act 2018.
If you think that your property is unsafe
If you think your property is unsafe, you should first tell your landlord or letting agent and give them a reasonable opportunity to put the problem right, unless there is an immediate danger. If they fail to act, contact the Environmental Health or Private Sector Housing team at your local council and ask them to inspect the property.
10. The Gas Regulations
Gas can be very dangerous and for this reason, there have been strict gas regulations in force for many years. These are the Gas Safety (Installation and Use) Regulations 1998. The rules relating to landlords are set out in section 36.
In essence, landlords are obliged to
- Carry out regular gas safety inspections of the property using an engineer registered with the Gas Safe Register. The engineer will provide the landlord with a certificate after the inspection has taken place
- A copy of the most recent certificate must be given to new tenants before they rent the property, and
- To existing tenants within 28 days of the inspection taking place
- The landlord must keep all gas pipework, appliances owned by him, chimneys and fuels in a safe condition, although
- Landlords do not have the same obligations towards gas appliances owned by tenants
Needless to say, your landlord’s engineer cannot carry out the inspection if you do not let him in. Likewise, remedial works cannot be carried out if you do not allow access. In law, you are required to provide access so long as your landlord has given you not less than 24 hours notice in writing.
If the appointment time is inconvenient for you, your landlord cannot legally force entry. However, you must work with your landlord to find an alternative suitable time for access.
The gas regulations are there for your safety and are a legal obligation that landlords are required to carry out.
If you fail to co-operate with your landlord in this, he can go to court and get an injunction ordering you to allow access (these are known as ‘gas injunctions’).
If on the other hand, your landlord is failing to carry out the inspections, you should write and ask for this to be done. If your landlord still does not get the inspection done, you can report him to your local Health & Safety Executive (HSE) who enforce these regulations.
For more information about landlords obligations on gas safety see the following websites:
11. The Electricity Regulations
These are fairly recent – for many years we had the strange situation where landlords had by law to carry out regular gas inspections by law but not (save for HMO properties) electricity inspections.
However, with effect from 1 April 2021, all landlords now have to carry out regular inspections under the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020, and ensure that electrical safety standards are met.
Your property will need to be inspected at least once every five years, and a report of the inspection must be given to you.
As with the gas inspections, you should give access to the inspector to allow the inspection to take place, and also to your landlord’s electricians later should any repair or other works need to be done.
It is, after all, for your safety.
For more information about electrical safety, see the government guidance page here.
12. Regulations regarding energy efficiency
Improving the energy efficiency of homes has become an important part of UK government policy. Domestic properties account for a significant proportion of the UK’s carbon emissions, and the law has increasingly required landlords to improve the energy efficiency of rented homes.
This is an area of law which is expected to change over the next few years, so you should check that any information you rely on is up to date.
Before marketing most properties for rent, landlords must obtain an Energy Performance Certificate (EPC). They must also provide prospective tenants with a copy before they enter into the tenancy. A landlord who fails to comply with these requirements may face enforcement action and a financial penalty from the local authority.
The EPC shows the property’s energy efficiency rating, estimates its likely energy costs and recommends improvements that could make it more energy efficient.
At present, most privately rented properties must have an EPC rating of at least E unless an exemption applies. The Government has indicated that it intends to raise this standard in the future, but you should check the current position as the law may change.
In some circumstances, tenants have the right to ask their landlord to carry out energy efficiency improvements. The landlord cannot unreasonably refuse a qualifying request, although there are a number of exceptions, including where funding is not available or other legal exemptions apply. There is government guidance on this here.
Although a property may meet the legal minimum standard, a higher EPC rating will often mean lower heating bills. If you are choosing between two similar properties, the EPC rating may therefore be worth considering.
13. HMO Managaement Regulations
Broadly speaking, an HMO is a property occupied by people from more than one household who share facilities such as a kitchen or bathroom. The legal definition is more complicated, but this is the basic idea.
Note that we have a general article on HMOs and your rights if you live in an HMO here.
Because several unrelated households are sharing one property, there are additional legal duties designed to ensure that it is managed safely.
These are the Management of Houses in Multiple Occupation (England) Regulations 2006 (there are similar regulations for Wales).
The regulations cover matters such as:
- keeping fire escape routes clear and maintaining fire safety equipment;
- ensuring the water and drainage systems are in good repair;
- maintaining gas and electrical installations;
- keeping the common parts, such as halls, stairs and shared kitchens, in good condition and reasonably clean;
- maintaining handrails, lighting and other safety features; and
- keeping outside areas, yards and gardens reasonably safe.
These rules are enforced by Local Authorities, who are responsible for licensing licensable HMOs, often at the same time as they are enforcing standards under the HHSRS discussed above.
However, it is important to realise that ALL HMO landlords are bound by the management regulations, even if their property does not need a license.
One common misconception is that these duties only apply to licensed HMOs. They do not. The Management Regulations apply to all HMOs that fall within the Regulations, whether or not a licence is required.
Note also that the HMO management regulations also have clauses (in section 10) requiring occupiers of HMOs to assist and not obstruct landlords when carrying out their duties under the regulations. So remember this!
If you believe your HMO is not being managed safely—for example, fire doors are damaged, escape routes are blocked, or the common parts are in poor condition—you should report the problem to your landlord or manager. If nothing is done, you can ask your local council’s Private Sector Housing or Environmental Health team to investigate.
14. And finally
As you can see, this is a very complex area of law.
It is perhaps unnecessarily complex, but it has been made so by the piecemeal way in which the law has developed. New regulations have been added in an ad hoc manner when the law is shown to be inadequate in particular ways.
We have covered the main areas of law that apply, but there are also a number of other regulations (plugs and sockets, cookers etc) which are relevant, along with building regulations and the like. But we had to draw a line somewhere!
It would be good if this whole area of law could be reviewed properly and codified. But this looks unlikely to happen for some time, if at all.
Note by the way that new rules relating to ‘decent homes’ standards and ‘Awaabs law’ are expected to be introduced some time after 2030 as mentioned in our article on the Renters Rights Act changes.
This is the end of this article.
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