Does a broken boiler mean a property is “unfit for human habitation”?

We recently had a contract-holder report that their boiler was broken, and in doing so they claimed the property was “unfit for human habitation”, meaning no rent should be due until it was fixed.

A bold claim, but are they correct? In this article, we explain the thought process and legal knowledge that went into our response to the occupier.

Background

By now, all landlords should be aware of the term ‘fit for human habitation’. The need for a property to be fit has been enshrined in English law since 2018 and, more recently, in Welsh law since 2022.

But is it as cut and dry as 'something goes wrong = property unfit'? No, it isn't...

In what circumstances does the law say a property is unfit?

The Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022, commonly referred to as FFHH, say a property is unfit for human habitation if:

It doesn’t have a working carbon monoxide alarm in each room containing a gas appliance, an oil-fired combustion appliance or a solid fuel burning combustion appliance. This includes rooms with gas boilers and/or gas cookers.
It doesn’t have a mains-wired smoke alarm on each storey, interlinked with any other mains-wired smoke alarm.
It doesn’t have a valid electrical condition report, or the report hasn’t been given to the contract-holder (the property is only fit once it has been given).
There is a presence or occurrence, or a likely presence or occurrence, of the 29 prescribed ‘matters and circumstances’.

Where does a broken boiler come into the 'fitness' consideration?

Only one of the 29 prescribed 'matters and circumstances' mentioned above can be the consequence of a broken boiler, which is:

"#2: Cold - Exposure to excessively low temperatures."

Given the time of the year the broken boiler was reported (August), we think it's safe to assume that the occupier wasn't going to be exposed to excessively low temperatures through a lack of heating or hot water, though they may if it continues into winter.

Interestingly, none of the 29 points refer to hot water being a must, which suggests a lack of hot water wouldn't be a reason for a property to be deemed unfit – unless, as covered above, it contributed to exposure to excessively low temperatures.

So if a broken boiler doesn't make a property unfit, why should the landlord repair it?

We know no reasonable landlord would ask themselves this question, but let's explore the repairing obligations the law puts on a landlord.

Fitness for human habitation aside, there are two main pieces of legislation that dictate when a landlord should perform repairs:

Renting Homes (Wales) Act 2016

You may be familiar with Section 11 of the Landlord and Tenant Act 1985, which laid out a landlord's repairing obligations. This section was repealed by Part 4 of the Renting Homes (Wales) Act 2016, though it recreated it nearly word-for-word.

Amongst other things, it says landlords must keep installations for space heating and hot water in repair and proper working order, so there can be no doubt that a broken boiler must be fixed at the landlord's expense.

Housing Act 2004

Part 1 of this Act introduced The Housing Health and Safety Rating System (HHSRS), which local authorities use to assess housing conditions and enforce housing standards.

The 29 prescribed 'matters and circumstances' in FFHH are almost identical to the items the local authority must consider under HHSRS, but crucially, FFHH does not replace HHSRS.

Welsh local authorities will use HHSRS if they're called out to a property by an occupier. If they observe a category 1 hazard – the most serious of hazards – they must take enforcement action, e.g. issue a notice to the landlord to carry out work to remove the hazard(s) within a specific period of times. Category 2 hazards are deemed less serious, so the local authority can choose whether to take enforcement action or not.

The time of the year and the vulnerability of the occupier(s) will come into the local authority’s thinking when determining whether a broken boiler is a category 1 or 2 hazard, but given it’s a legal requirement to have a boiler in working order, they are likely to take enforcement action against the landlord either way.

How long does a landlord have to repair a broken boiler?

If the local authority have attended and taken enforcement action under HHSRS, their correspondence will give a timeframe for the landlord to fix the boiler, but what if they haven’t called out?

The Renting Homes (Wales) Act 2016, and indeed every single Written Statement of Occupation Contract, states that a landlord’s repairing obligation for everything does not arise until they are made aware that repairs are necessary. They also provide a landlord with a “reasonable time” thereafter to complete the work.

What is “reasonable” is open to interpretation and can ultimately only be decided by a court, but some factors that would come into the consideration are:

how serious the issue is (you’d expect a leak to be dealt with quicker than a chest of drawers needing repairing).
the time of the year (a heating issue should be dealt with more quickly in winter than it would in summer).
the vulnerability of the occupant (if there’s a baby or an elderly person at the property, the reasonable period would probably shorten).
the availability of a suitable contractor to attend and diagnose the issue (public holidays may influence this, as would an item that requires a specialist engineer who may be in short supply).
once diagnosed, the lead/delivery time of any parts or materials that may be required to complete the fix.
the availability of the same contractor/engineer to then fit said parts/materials.

When would compensation be due to the contract-holder for maintenance issues?

Compensation for anything – housing or otherwise – is only due when a loss has been suffered. In housing, a loss includes not being able to use all or part of the property, including its facilities. However, compensation is only due once the reasonable period for the landlord to fix the problem has passed.

Compensation is calculated on a ‘per day’ basis and floor area is often used in the calculation, e.g. “how much of the property could not be used between the reasonable period passing and the item being fixed?”. In the absence of floor space measurements, the number of rooms could be used and divided equally. For example, if there are 13 rooms in the house (8 bedrooms, 2 bathrooms, a kitchen, a lounge and a garden, each room would make up 7.69% of the property, so each room accounts for 7.69% of the daily rent.

Then, how much of the room is unusable? If it was the whole room, the whole 7.69% of the daily rent would be due back for each day, but only part of the room may have been unusable.

That’s a general rule of thumb, but it’s typically fact specific. For example, compensation for the loss of the only bathroom in the property would be much greater than if there was another useable bathroom.

Closing comments and a warning to landlords

We’ve demonstrated that:

In this instance, the property is fit for human habitation.
Landlords do have legal obligations to repair broken boilers.
The law allows them a reasonable period to fix the issue, which starts after being made aware of it.
Compensation is due if it isn’t fixed within that reasonable period, but there’s a specific calculation for it.

But let’s just pretend for a second that the property was unfit for human habitation. Who would decide that and what would the consequences be?

Only a judge can decide if a property is unfit. Due to the Regulations’ infancy, we’re not yet aware of a court case in Wales that has determined whether a property is fit or unfit, but a recent case in England may give us an indication of how a judge will look at it – and it wasn’t good news for the landlord.

The judge decided that if a property is not fit for habitation, one does not enjoy it, one endures it. He felt either the house was fit and rent was payable, or it was not fit and in that case no rent was due. As such, he awarded 100% of the rent as compensation for the period in which he deemed the property unfit. He did not apply the usual “how much of the property was unusable?” logic.

Whilst only a county court judgement (and a case that wasn’t defended), it does show the danger of the concept of fitness for human habitation. If a property is not fit, this case would argue that no rent is payable. It’ll be very interesting to see what happens if a similar case reaches the higher courts. An appeal of this particular decision is unlikely.