Renting Homes (Wales) Act 2016: Repair obligations, fitness for human habitation and retaliatory evictions

This is a short form article providing an overview of the rules on repairs in Wales following the implementation of Renting Homes (Wales) Act on 1 December 2022. The information in this article only applies to Wales.

Key changes

New regulations place a duty upon landlords to make sure that their properties are fit for human habitation, bringing Wales into a similar position with the law in England.

New, stricter regulations around gas, electrical safety as well as smoke and carbon monoxide alarms have also been introduced, with serious consequences for landlords who do not comply.

The Welsh Government has produced a guide to help explain the key changes: Fitness of homes for human habitation: guidance for landlords | GOV.WALES

Repairing obligations

Landlords must keep in repair the structure of the house and its exterior, as well as the installations for water, gas, electricity, sanitation, space heating and water heating.

This is a fundamental term of the occupation contract.

For more information on fundamental terms see here: Occupation contracts — your client’s rights under the Renting Homes (Wales) Act 2016 — AdviserNet (citizensadvice.org.uk)

Fitness for Human Habitation (FFHH)

This is a new provision introduced by the Act, landlords must ensure that the property they let out is fit for human habitation when their contract-holder moves in and throughout their contract.

When deciding whether a property is fit for human habitation or not, the landlord (and, if required the Court) must consider various factors, see here for further information: https://gov.wales/fitness-human-habitation-guidance-tenants-contract-holders-html

Mandatory safety measures

The act introduces the following mandatory safety measures, applying to landlords:

Smoke alarms and carbon monoxide alarms

Landlords must make sure there is a working hardwired smoke alarm on each floor of the premises, linked to the hard-wired smoke alarms on other floors. They must also make sure that there is a working carbon monoxide alarm in every room containing a gas appliance, oil fired combustion appliance or solid fuel burning combustion appliance.

Electrical Safety

Landlords must make sure there is a valid electrical condition report. These are valid for 5 years, or less if the inspector who did the last report says so. The landlord must make sure that the contract-holder is given a copy of the most recent report and written confirmation of any work carried out after the report. This must be given within 7 days of the occupation date or, if an inspection was done after that date, the inspection date.

If work was done after the occupation date, the landlord must ensure the contract-holder is given written confirmation of the work within 7 days of the landlord having it.

Gas safety

Whilst Gas safety rules are not new, they are included within the Act. The landlord must provide a contract-holder with a gas safety certificate before they move in.

Landlords are required to carry out a gas safety check every 12 months. The contract-holder should then receive a record of the gas safety certificate within 28 days of the inspection.

Consequences of non-compliance by a landlord

Where the landlord has not complied with the above repair, FFHH and mandatory safety rules, the premises will be deemed unfit for human habitation.

If a contract-holder thinks that their home is in some way unfit, they must tell the landlord. If the landlord disagrees with or refuses to take any action, the contract-holder can use the following remedies:

Rent not payable in some cases

• A contract might incorporate a provision that a contract-holder is not required to pay rent in respect of any day or part of a day when the premises are unfit for human habitation. There may be lengthy periods when rent is not payable.
• Clients are best advised not to withhold rent but to communicate with the landlord and ask for it to be returned as there is always the risk the court may determine the property was not unfit and the client risks being evicted for rent arrears.

Order for works

• The contract-holder can also make a claim to the County Court for an order for specific performance. If the works needed are urgent, an interim injunction may be needed.

Compensation

• The contract-holder can make a claim to the County Court for compensation. They will need evidence of the problem, telling the landlord about it and any losses. A contract-holder should be entitled to set-off any compensation against rent arrears.

Restriction on serving “no fault”, periodic, break clause or end of fixed term possession notice (standard contracts)

• A landlord may not serve a possession notice relying on the above where the property is treated as being unfit for human habitation:
• because of the failure to ensure working smoke alarms and carbon monoxide alarms were installed which as a result the landlord was required to rectify.
• because of the failure to obtain an electrical condition report or give that or a works completion report to the contract-holder which as a result the landlord was required to rectify.
• because of the failure to provide a valid gas safety certificate

ADVISER TIP — Converted contracts

Repair and Fitness for Human Habitation rules will take effect immediately from 1 December 2022 however there are some exceptions.

While new contracts must be in compliance with mandatory safety rules immediately, contract-holders with converted contracts (tenancies that began before 1 December 2022) have until 1 December 2023 to comply with smoke alarms and electrical safety rules. The rules around carbon monoxide alarms however will take effect immediately.

Landlord liability — limitations

A landlord will not be liable where: -

• they cannot make the property fit for human habitation at reasonable expense.
• it requires rebuilding or reinstating the dwelling or any part of it after destruction or damage from a fire, storm, floor or other “inevitable accident”.
• it requires keeping in repair something which the contract-holder is entitled to remove from the home.
• it does not affect the contract-holder’s enjoyment of the premises or common parts they are entitled to use. This only applies to repair obligations and not FFFH rules.
• unfitness arises wholly or mainly due to the contract-holder.
• they have not become aware that works or repairs are necessary, except where the property was unfit from the start. The landlord will have complied with their duty if they do the works needed within a reasonable time.

Retaliatory Eviction

From 1 December 2022, contract-holders may be able to defend possession proceedings which have been brought in retaliation for complaining about disrepair or poor property conditions.

This will generally apply where a landlord has served a s.173 “no fault” notice.

A claim will be retaliatory if

• the contract-holder has enforced or relied on the landlord’s repairing obligation or duty to ensure the premises is fit for human habitation, and
• the court is satisfied that the landlord made the claim to avoid complying with those obligations.

It is advisable contract-holders notify the landlord of the issue and keep a written record of their complaints and correspondence with the landlord.

The Court will decide for itself whether the claim is retaliatory. If it finds that the claim is retaliatory it may refuse to make a possession order.

ADVISER TIP — Converted contracts

To ascertain whether a tenant whose tenancy converts into an occupation contract can rely on the retaliatory eviction protections, advisers should check whether the deadline for compliance has expired. If the duty has not yet arisen, the claim will not likely be retaliatory.

Mariam Raza is a housing expert in the Renting Homes Wales Team at Citizens Advice

The information in this article is correct as of the date of publication. Unfortunately, we are unable to respond to comments left on the medium site — please contact expertadvicesupport@citizensadvice.org.uk if you wish to give feedback on an article.