In the recent case of Harvey v. Heaver & Another [2026] EEA1671(KB) the issue to be determined before the High Court was whether a privately rented property was unfit for human habitation.
Background
The Claimants occupied a property near Chichester with their four children under successive assured shorthold tenancies, from September 2020.
The property they occupied suffered from significant issues which included damp, mould, damage to the asbestos coated ceiling, septic tank defects, defects to the heating system and rodent infestation.
The claim brought by the Claimants against the Defendant landlord was for breach of the implied covenants under Section 9A and Section 11 of the Landlord & Tenant Act 1985 (“LTA 1985”). The Homes (Fitness for Human Habitation) Act 2018 had inserted section 9A into the LTA 1985.
Elements of the claim outside of the court’s consideration under Section 9A, such as the personal injury claims and Equality Act 2010 claims, were remitted to the County Court.
The claims before the court were for specific performance that the Defendant be ordered to undertake remedial works, provide alternative temporary accommodation and for damages.
Legal Principles
The claim was based on Section 9A(1) LTA 1985 which implies a term into the tenancy that a dwelling must be fit for human habitation at the start and throughout the tenancy.
Section 10 of the LTA 1985 sets the basis for the court to consider whether the property is unfit for human habitation, taking into consideration elements such as repair, freedom from damp, water supply, drainage and ventilation and, in addition to that, any prescribed hazard in relation to a dwelling located in England.
Section 9A(3) provides a defence for a landlord to a claim if the fitness of the property is ‘wholly or mainly’ attributable to the tenant’s conduct. There is, however, a high threshold to satisfy this defence.
Section 9A(5) of the LTA 1985 provides a remedy for the tenants that the court may grant an Order for Specific Performance.
The evidence provided in this case to the court was that of a single joint expert instructed by the parties, and neither party challenged the expert’s evidence.
The expert determined that damp and mould were found in every habitable room and in the roof spaces because of the defects of the building. The expert also found that there was a damaged asbestos coating to the bedroom ceiling, issues with the septic tank and defects to the heating system, as claimed by the Claimants, and a rodent infestation.
Court’s Ruling
The court found in favour of the Claimants, having taken into consideration previous case law of Summers v Salford Corporation [1943] AC283 and Rendlesham Estates PLC v. Barr Limited [2015] 1WLR 3663 when contemplating the guidance and determining whether the property was fit for human habitation. Based on the case law, there are two elements that are important, being firstly the property may be unfit if the living conditions present a risk to health or safety and, secondly, if conditions are such that the property cannot be used by the tenant with reasonable comfort.
Consideration was given to the Category 1 and 2 of the Housing Health and Safety Rating System (“HHSRS”) hazards and whether they existed within this property. The court concluded that it is still possible to find the property is unfit for human habitation, even if a formal hazard assessment has not been undertaken.
The court ordered specific performance, and the Defendant landlord was required to carry out remedial works as detailed in the expert’s costed schedule.
In addition, the Claimants had sought an Order that temporary accommodation should be granted; however, this claim was rejected as they are private tenants and have no automatic right to alternative housing. The court did order costs against the Defendant landlord who was ordered to pay the Claimants’ costs with a payment on account of £130,000 plus VAT.
Points to Note
Landlords and tenants should treat this decision as a clear warning: under the Homes (Fitness for Human Habitation) Act 2018 inserting section 9A of the LTA 1985, a landlord’s obligation is not merely to respond to isolated items of disrepair, but to ensure that the dwelling is fit for human habitation at the outset and remains so throughout the tenancy.
As with so many claims, expert evidence is crucial and courts will expect factual expert evidence to determine the fitness of the property.
If you need advice on disrepair as a landlord or tenant, please contact us and a member of our team will be in touch.