Harvey v Heaver [2026] EWHC 1671 (KB), 3 July 2026

Guidance on fitness for human habitation – section 9A Homes (Fitness for Human Habitation) Act 2018

The facts

The claimants, a family of six including four children, occupied a four-bedroom mid-nineteenth-century house near Chichester under successive assured shorthold tenancies from September 2020. They claimed against their landlord for breach of the implied covenants in sections 11 (repair) and 9A (fitness for human habitation) of the Landlord and Tenant Act 1985 (“LTA 1985”), seeking specific performance of remedial works, provision of temporary alternative accommodation (a “decant”) and damages. Personal injury and Equality Act 2010 claims had been split off for later trial in the County Court.

The evidence came from an unchallenged single joint expert. His findings were stark: damp and mould in every habitable room and both roof spaces, with moisture readings in the “wet”/saturated band throughout; a cracked, deflected and bulging bedroom ceiling with a damaged asbestos-containing coating, water visibly dripping through it; active rodent infestation; a defective septic tank vent; and defects to the oil-fired heating system. Remedial works were costed at £39,150 plus VAT over 4–6 weeks.

Notably, the judge confined the trial to present unfitness under section 9A. Historic breaches, notice, section 11 disrepair and the section 9A(3) attribution issues were all remitted to the County Court to be tried with the personal injury and Equality Act claims, expressly to avoid issue estoppel problems.

The decision

The judge undertook a full review of the legislative history of “fitness for human habitation” across its four strands: the old low-rent implied covenant (s 8 LTA 1985 and predecessors), local authority enforcement powers (now the HHSRS under the Housing Act 2004), the Defective Premises Act 1972, and statutory nuisance. His key conclusions on construction:

• The core section 10 test is carried over unchanged by the 2018 amendments, so the older authorities remain a reliable guide. Summers v Salford Corporation [1943] AC 283 and Rendlesham Estates v Barr [2015] 1 WLR 3663 establish that fitness has two distinct limbs: a property is unfit if ordinary occupation presents (i) a risk to health or safety, or (ii) undue inconvenience or discomfort — even absent any health risk. A single defect can render a whole dwelling unfit.
• The addition of “any prescribed hazard” to section 10(1) deliberately imports the 21 HHSRS “matters and circumstances” into the private law fitness assessment, converging (partially) the public and private law regimes. Crucially, the court need not find a category 1 or 2 hazard — though a local authority assessment of one would be strong evidence of unfitness.
• The section 9A(3) defence (unfitness “wholly or mainly attributable” to the tenant’s breach) sets a high threshold: tenant default that is a real but secondary cause will not do. The “tenant-like manner” carve-out in s 9A(2)(a) never extends to the structure and exterior.

Applying that framework, the property was unfit. The damp alone — “frankly, deplorable” — sufficed, as did the damaged asbestos ceiling on its own. The landlord’s argument that the damp was down to the tenants’ “lifestyle choices” (drying clothes, not heating) was rejected as inconsistent with both the expert evidence and government guidance, which the judge treated as relevant and helpful.

Specific performance was ordered under section 9A(5), defined with precision by reference to the expert’s costed schedules. The statutory words “regardless of any equitable rule restricting the scope of that remedy” displace the old Hill v Barclay objections; what survives is adequacy of damages and oppression.

The decant application failed: private tenants have no freestanding right to alternative accommodation. The cost of moving out is a head of damages, ordinarily assessed at quantum, and the necessity of vacating was not made out on the expert evidence.

Conclusion

The immediate practical significance of the judgment lies in its confirmation that the old case law survives the 2018 amendments. Summers and Rendlesham remain good authority on the amended section 10 test, so unfitness can be established on the comfort and convenience limb alone, without proof of any risk to health, and a single defect in a single room may render the whole dwelling unfit. Alongside that continuity sits a genuine innovation: the HHSRS prescribed hazards (as rationalised to 21 by SI 2026/571) now feed directly into the private law fitness assessment, and both the HHSRS Operating Guidance and the government’s Damp and Mould Guidance will carry real evidential weight — although no category 1 or 2 hazard finding is required before a court can hold a property unfit.

For those defending landlords, the message on “tenant lifestyle” arguments is sobering. Section 9A(3) requires the tenant’s breach to be wholly or mainly causative. On remedy, specific performance is now likely.

More than seven years after the Homes (Fitness for Human Habitation) Act 2018 inserted section 9A into the LTA 1985, we finally have a considered High Court judgment on what the implied fitness covenant means and how it is to be enforced. Anyone advising residential landlords or tenants should read it.

Article by Lina Mattsson