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Welsh Government have released guidance on what landlords must do to ensure properties are in good repair and fit for human habitation (FFHH) from 1 December 2022.
What is required?
Under the new occupation contracts, the contract will require the landlord to make the home FFHH and ensure it stays that way through the lifetime of the contract. This new right is in addition to the right to have repairs carried out by the landlord.
This guidance gives contract-holders and landlords advice on what FFHH means for them. It also suggests actions a landlord could take to help ensure a home is FFHH.
Matters and circumstances that make a property unfit for human habitation
The aim of the Fitness Regulations is one of prevention, to help ensure landlords maintain dwellings to prevent them from becoming unfit for human habitation.
There are 29 matters and circumstances which are considered when it comes to fitness for human habitation. Landlords may be familiar with many of these matters as they are similar to the hazards under the existing HHSRS. Due to this, many properties are likely to be free from these matters already but it's important that landllords assess their properties to ensure they are free of any potentially dangerous matters that could harm a contract-holder.
You can find the Welsh Government’s full list of the matters relating to FFHH here
Safe2 advice on Fitness for human habitation
You can watch the below video from Safe2 discussing FFHH and how you can prepare for the incoming changes.
In addition to the 29 matters and circumstances, landlords are required to provide certain information and ensure the property has sufficient smoke and carbon monoxide detectors. Failure to meet these requirements will automatically make the property unfit for human habitation so it is vital these requirements are met.
Inspection and testing of electrical installations
A landlord is required to have the electrical installations of the dwelling tested every five years unless the requirements of the EICR indicate a shorter testing interval is required. Where a shorter interval is included on the report, the five-year period will not apply and a future test must be undertaken at the interval indicated on the report. Failure to do so will mean the dwelling is considered unfit for human habitation.
The current EICR must be made available to the contract-holder within fourteen days of the occupation date. Where a Periodic inspection and testing (PIT) is carried out after the occupation date, the updated EICR must be provided to the contract-holder within seven days of the inspection date.
In addition, a landlord is also required to provide the contract-holder with written confirmation of all investigatory and remedial work carried out on the electrical installations as a result of a PIT.
This written confirmation must be provided to the contract-holder within fourteen days of the occupation date. Where investigatory and remedial work is carried out after the occupation date the written confirmation must be provided within seven days of the landlord receiving this confirmation.
What is PIT?
Anything receiving constant use will deteriorate over time and an electrical installation is no different. The electrical installations within rented accommodation is likely to be subject to greater levels of deterioration because of the changes of occupancy. It should therefore be inspected and tested regularly to ensure it is safe for continued use. This test is known as ‘periodic inspection and testing’ (PIT).
PIT is carried out on wiring and fixed electrical equipment to check that they are safe, the test will:
reveal if any of your electrical circuits or equipment is overloaded
find any potential electric shock risks and fire hazards
identify any defective electrical work
highlight any lack of earthing or bonding
Once the PIT has been completed you will be issued with an Electrical Installation Condition Report (EICR). This report will inform you of any deterioration, defects, dangerous conditions and any non-compliance with the present-day safety standard that might give rise to danger. If no such issues are found the EICR will confirm the electrical installation is satisfactory for continued use.
New build properties
Landlords may indicate that the dwelling is fit for human habitation as regards electrical safety through an Electrical Installation Certificate (EIC) where this certificate is in existence due to the property being a new build property. It must have been issued within the preceding 5 years.
Converted occupation contracts
A dwelling which is subject to an occupation contract which converted from an existing tenancy agreement on 1 December will not be subject to the electrical safety requirements for a period of twelve months from the date of conversion. This means that landlords of converted contracts have until 30 November 2023 to provide the contract-holder with an EICR.
This exemption stops applying to the dwelling should the converted contract be replaced by a new contract, either when the fixed term contract ends or a new contract is expressly agreed. When this happens an EICR must be issued within 14 days of the contract starting as per the standard requirements.
Smoke and carbon monoxide detector requirements
The FFHH Regulations require a smoke alarm, in proper working order, to be present on every storey of a dwelling. Landlords must ensure each of these smoke alarms is in proper working order, connected to the electrical supply and inter-linked with all other smoke alarms connected to the electrical supply.
To ensure that this requirement is met, the opportunity to test smoke alarms should be sought whenever possible, for instance whilst carrying out a necessary inspection, repair or electrical testing in the dwelling.
In addition, the FFHH Regulations require a landlord to ensure that a carbon monoxide alarm is present in any room which has a gas, oil or solid fuel burning appliance installed.
For further information on this requirement, see our more detailed guidance on smoke and carbon monoxide detectors.
Where a contract has converted from an existing tenancy then landlords are given a grace period to fit the required smoke alarms. Like the electrical safety requirements the grace period lasts until 30 November 2023 unless the converted contract is replaced by a new contract.
There is no grace period for carbon monoxide detectors and landlords must ensure all of their properties have CO alarms where required by 1 December.
Enforcing the fitness for human habitation requirements
The new law places an obligation on the landlord to ensure the dwelling is fit for human habitation. This is also set out as a fundamental term in occupation contracts (Clause 2.68 in the NRLA agreement) that must be included.
Where the contract-holders believe the property is unfit they can take the landlord to court to seek compensation and force the landlord to perform the works. Depending on the terms of the contract, the contract-holders may also be able to stop paying rent until the court has decided whether the property is fit for human habitation. The Welsh Government's model occupation contract allows this for example. The NRLA contract does not, and contract-holders will instead receive compensation after a court has decided the property is unfit for human habitation.
Restrictions on serving notices
During a periodic standard occupation contract landlords can serve a Section 173 notice. This is similar to the old Section 21 notice but requires six month's notice instead of two.
This notice will normally guarantee possession. However, where the property does not have the required smoke and carbon monoxide alarms, or the EICR, then landlords are prevented from using this notice.
This is a fundamental clause and must be included in the occupation contracts. It is set out in clause 12.30 of the NRLA agreement.