Fitness for Human Habitation Act

I have singularly been in dialogue with landlord - property blogs, originally the sole and first voice to speak up about concerns for abuse of this legislation.

This has not gone down too well with the author, Mr Giles Peaker. I have been blunt about the massive campaign in existence by All legal aid solicitors about the general state of reduced funding.

In particular, I have pointed out that the author is a legal aid solicitor and that FFHH cases will by the nature of their potential for injury to Health ( HHSRS comparators, more of that shortly ) attract a Legal Aid solicitor.

My concern has been that tenants who find themselves subject to Possession proceedings, will soon 'cotton-on' to a potential avenue for what I call, " Retaliatory Defence "

A complaint about mold - mildew, portrayed as signs of damp could be brought to a willing legal aid solicitor ( not many will turn down a case, and they'll get paid, win or loose )

Meanwhile any pending Possession case is likely to be adjourned pending the outcome of a civil claim.

Mr Peaker disputes this is likely or a course the courts will take.

I would like to think and hope he is right but have serious concerns he may not be.

Look at the existing position where a Tenant is being taken to court for Possession following rent arrears. In such cases where there is a deposit contravention, the courts have shown a repeated willingness to off-set the civil award for failure to protect a deposit, against the rent outstanding.

Given this, I see no reason why a court wouldn't adjourn a Possession hearing for rent arrears to allow an award against the landlords to be offset, or at least allow the tenant to use to pay of the rent arrears. Whether the court directly off-set and adjust or award against the Landlord waits to be seen.

I do accept that there are a minority of properties that justify measures, but argue that Local Authorities already have the powers to deal with this ( if not the resources )

Outsourcing what should be the prosecution of unfit properties to civil law is in my view an abrogation of enforcement responsibility, facilitated by this legislation. Cheaper for MHCLG to enact Civil law than fund Local Authorities appropriately.

Mr Smith points out that FFHH is not synonymous with HHSRS, I beg to differ. Page 5 of the legislation defines a 'Prescribed hazard as 'prescribed by Section 2 of the Housing Act 2004' ( which is a Category 1, or ' 2 ' hazard. )

True a court has to consider whether a hazard under HHSRS is such that it convinces the court the property is unfit for habitation. Despite the legislation excepting acts or omission by the lessee ( tenant in plain English, although legislators aren't capable of writing like that. )

A potential scenario -

Tenant dries clothes inside, doesn't open windows and wants to pay as little to heat the property as possible. ( I'm sure this is ringing bells with landlords ! ) Mold mildew and damp patches, black spores are evident, but doesn't necessarily bother the tenant at the time - likely knowing their responsible.

Tenant falls behind with rent, Landlord serves Sec 8 Notice, tenant indicates a defect. Is it not beyond the realm of any conception that a tenant photographs the black mold spores, goes to their GP, complains of a cough, shows photo and gets sick certificate. ( How hard - easy, is it to get a sick note ! )

Tenant likely not working and on DSS as RLA have campaigned against many landlords wishes and interests to choose to support an organisation like Shelter who campaigns for the Rights of a landlord to choose, to be removed from advertisements, wasting many peoples time.

Tenant takes Sec 8 Notice and PCOL to Legal Aid solicitor. Civil claim commenced. The legislation authors believe the courts will treat the FFHH separately, I and many landlords from painful experience are not convinced ( especially not given the example of Deposit contravention above )

Whilst its true that Possession Friend have been the first to raise concerns, we are certainly not the only ones now !

Rentokil in Landlord Today 20/3/19 state 5.8 million renters claim to experience damp and condensation issues and " 2 Million ! " believe they have developed an illness as a result of their living conditions. according to research by Rentokil Care.

17% tenants aware of FFHH, but Rentokil rightly state tenants must take responsibility for their living environment.

20% do Not use trickle vents.

38% tenants admit to wearing more clothes instead of turning on heating to save money.

30% tenants regularly dry clothes on radiators with 11% admitting to doing this 'all the time'.

12% dry clothes in the bathroom, an area where there's already a lot of moisture.

So, when a tenants is confronted with possession proceeding for rent arrears, - Who ( apart fro the legislators ) think the tenants are going to own up to this, or what most Landlords from experience believe, that they will deny causing the damp ? ( answers on a postcard )

If Anthony Gold on behalf of the RLA believe its only Landlords that raising this issue, I'd point to Landlord Today, 22/3/19 where Lauren Bryan Chartered Legal Executive of the Dispute resolution dept of Thursfield Solicitors in Birmingham comments, .... the act should prompt landlords to check their properties comply to .. " avoid unnecessary legal action. " But if a landlord is served with proceedings or the tenant pleads this as a " DEFENCE to POSSESSION PROCEEDINGS " [ Helloooo ] they should immediately seek legal advice.

Bryan added, ' While the law will have some positive outcomes by persuading ( some, my emphasis ) landlords to carry out urgent repairs, it is also just another barrier put before decent landlords and another set of rules to comply with. ' Landlords should check their properties and seek legal advice if they feel tenants are trying to take undue advantage of the new laws. ' ( something the legislators deny is possible or likely. - Its not like they haven't got any experience in court with tenants ! )

A landlord isn't able to win from this legislation, even if the proceedings are successfully defended, as the landlord will have to pay their own solicitors fees, whilst the tenants will be paid by the Tax-payer, a larger proportion of that being landlords since Sec 24 Finance Act !

Solicitors acting for either Landlord or Tenant are going to get paid either way, which brings me back to who wrote this legislation, pro-bono, strangely enough - oh, it was a legal aid solicitor. ( who accuses me of raising this for 'my own ends' ! )

Chris

Possession Friend.uk

rla and nla do not seem to be on our side?

Reply to the comment left by terry sullivan at 05/04/2019 - 10:08
They don't seem to be on our side, because they're not on our side. My recent P118 article points out the inclusion of inflammatory and emotive language 'slipping through the net' onto S.21 Notices without so much as a peep out of the NLA/RLA...

https://www.property118.com/emotive-meaningless-words-no-fault-referring-s-21-notices/