The fitness for human habitation covenant in section 9A of the Landlord and Tenant Act 1985 had been in force for more than seven years, yet counsel in Harvey v Heaver [2026] EWHC 1671 (KB) could not point the court to any authoritative interpretation of it (at [41]). The High Court has now construed it, ordered a private landlord to carry out the works, and ordered her to pay the tenants’ costs of the expedited trial, to be assessed on the standard basis, with £130,000 plus VAT on account.

Quick answer

A home is unfit for human habitation under sections 9A and 10 if it is so far defective in one or more of the listed matters, which now include any prescribed hazard under the Housing Act 2004, that it is not reasonably suitable for occupation in that condition. That can be because conditions put the occupiers’ health or safety at risk, or because they cause undue inconvenience or discomfort even without a risk to health or safety. No category 1 or category 2 hazard is needed. The court can order specific performance, and in this case the landlord was ordered to pay the tenants’ costs of the trial, to be assessed on the standard basis, with £130,000 plus VAT on account.

What happened in Harvey v Heaver?

The claimants, a couple and their four children aged between 7 and 16, rent a four-bedroom, mid-nineteenth-century house with solid masonry walls near Chichester in West Sussex. They have lived there since September 2020 under successive assured shorthold tenancies, the first granted after 20 March 2019, so the section 9A covenant applied throughout (at [2], [8]–[9]). They sued the landlord under sections 9A and 11 for specific performance of the works, temporary alternative accommodation while they were done, and damages for past breaches, together with claims for personal injury and under the Equality Act 2010 (at [2]).

The case came before Paul Bowen KC, sitting as a Deputy High Court Judge, as an expedited trial of the housing condition issues. The personal injury and Equality Act claims had already been ordered to be tried separately, and directed to be transferred to the County Court after this trial (at [3]). The judge confined the trial to whether the property was unfit at that date and what relief should follow. Historic disrepair and unfitness shared their facts with the claims going to the County Court, so deciding them now risked inconsistent findings, and given their value they were more appropriately decided there (at [4]–[6]). He transferred them under section 40 of the County Courts Act 1984 (at [7]). He gave his ruling on 25 June 2026, after a three-day trial (at [1]), and handed down his reasons on 3 July 2026.

The landlord had served two section 21 notices but had issued no possession claim; the tenancy, and with it the section 9A covenant, continued (at [10]–[11]). The judgment does not mention the Renters’ Rights Act 2025. From 1 May 2026 private landlords in England can no longer give section 21 notices, and a notice given before then, like the landlord’s second notice here (7 April 2026), could be used to start possession proceedings only by the earlier of its expiry and 31 July 2026; a claim issued by then continues to its conclusion.

The evidence on condition came from a single joint expert, a chartered building surveyor, whose report and answers to Part 35 questions were unchallenged (at [12]). He found damp and mould in every habitable room and both roof spaces, an active rodent infestation, a damaged septic tank vent and defects in the oil-fired heating system. An asbestos survey he adopted showed that the coating on a cracked, bulging and leaking bedroom ceiling contained asbestos and was damaged. He estimated the works at £39,150, excluding VAT and professional fees, over four to six weeks (at [15]–[33]).

How the court read the fitness test

Section 9A applies the test of fitness in section 10, which the Homes (Fitness for Human Habitation) Act 2018 amended. The judge traced the test back through the Victorian housing legislation (at [41]–[52]) and drew four conclusions (at [53]–[57]):

  • The core test is unchanged, so a property that was unfit before the 2018 amendments is unfit after them, and the older authorities remain a reliable guide: notably Summers v Salford Corporation [1943] AC 283 and Rendlesham Estates plc v Barr Ltd [2015] 1 WLR 3663, a Defective Premises Act case the judge treated as persuasive. Fitness has two distinct components: a risk to health or safety, and a sufficiently negative effect on comfort and convenience even where there is no such risk.
  • Adding “any prescribed hazard” to the list of matters extends what is relevant: a hazard prescribed under the Housing Health and Safety Rating System that presents any risk of harm, including temporary harm and harm to mental health, bears on fitness.
  • That brings a degree of convergence between private law and the local authority regime under the Housing Act 2004.
  • The convergence is only partial. The court does not need a category 1 or category 2 hazard, although a local authority finding of one would be strong evidence of unfitness.

Why this house was unfit

The judge found the property unfit as at 25 June 2026, both because of the risk to the family’s health and safety and, regardless of risk, because of undue inconvenience and discomfort, considering the defects individually and collectively (at [62] and [68]). He said in terms that two defects were each sufficient on their own:

  • Damp. Moisture readings reached the “wet” band throughout the habitable rooms, which the judge described as “frankly, deplorable”. The damp alone made the property unfit (at [63]).
  • Asbestos. The asbestos coating on the bedroom ceiling was damaged, the ceiling was bulging and water was coming through it above a bed. That was a risk to safety and to health, including mental health, sufficient on its own (at [66]).

The mould seen on the day of inspection was at the lighter end, but fitness is judged in the round and over a reasonable period, and with moisture readings that high, particularly in winter, there was a real and substantial risk that it would spread (at [64]). He added the rodent infestation, the broken septic tank vent (until it is investigated, the property is “unfit for this reason also”) and the heating defects (at [67]). He found a risk of excess cold, which would make the damp worse, but had too little evidence to find the property unfit by reason of it (at [24] and [65]). He declared the landlord in breach of the covenant in section 9A(1)(b) (at [84]).

The tenant exceptions, and a late amendment

Section 9A(2)(a) excludes works or repairs the tenant is liable for under the duty to use the premises in a tenant-like manner (or an express covenant to the same effect), but that duty does not extend to keeping the structure and exterior weatherproof (at [58]). Section 9A(3) removes liability where the unfitness is “wholly or mainly” attributable to the tenant’s own breach of covenant. The judge described that threshold as a high one. Condensation mould caused wholly or mainly by a tenant’s failure to heat or ventilate will defeat the claim; the same mould will not where it is mainly caused by something that is the landlord’s responsibility, such as inadequate insulation, even if the tenant’s use played a part (at [60]).

The landlord withdrew her section 9A(3) contention at trial, but her skeleton argument had also said the damp was “squarely within the tenants’ control” because they did not use the central heating and generated condensation from daily activities. The judge rejected that: it was at odds with the expert evidence she had accepted and with the HHSRS guidance, and the government’s damp and mould guidance says it is unreasonable to attribute damp and mould to tenants’ “lifestyle choices”. He found the damp and mould wholly or mainly attributable to the building’s limited thermal performance and to moisture coming in through the chimneys, walls and roof, all the landlord’s responsibility (at [19]–[21] and [63]).

On the first day of trial the landlord applied to amend her Defence to plead that the tenants’ historic failures to permit access for repairs had been wholly or mainly responsible for the unfitness. The judge refused: the amendment was very late, no good reason was given, causation had never been put to the single joint expert, and the tenants would have been prejudiced. She may still apply to amend and pursue the point, properly pleaded and supported, at the County Court trial of the historic issues (at [79]–[82]).

Specific performance, and no decant

Section 9A(5) lets the court order specific performance regardless of any equitable rule restricting the scope of that remedy. What remains relevant is whether damages would be adequate and whether an order would be oppressive or unjust (at [61]). Damages would not secure a habitable home, so the judge ordered the works item by item by reference to the expert’s tables, which gave the order the precision it needed (at [70]–[71]).

He refused the application for the landlord to provide and pay for temporary alternative accommodation. A decant is often an entitlement for social tenants, under the tenancy or the landlord’s policy, but a private tenant has no equivalent freestanding right. The usual remedy is damages for the cost of moving out, decided at the quantum stage once the works and their consequences are known; what was sought here was in substance a payment on account of those damages, and no reason or authority was given for it. And necessity was not proved: the expert said that no single item of work required vacant possession, that moving out would be more practical or desirable given the overall scale of the works, and that whether it was necessary for this family was outside his expertise. That question was likely to turn on disputed evidence about the family’s vulnerabilities, which belongs with the claims sent to the County Court (at [74]). In the event the parties agreed that the family would move out during the works with the rent suspended, and any extra costs of the move remain potentially recoverable as damages (at [75]).

The costs order

The tenants sought their costs of the trial on the indemnity basis, accepting that an approved costs budget is still subject to detailed assessment, and a payment on account of £130,000 plus VAT against an approved budget of £180,000 plus VAT. The judge refused indemnity costs, because the landlord’s conduct was not so far out of the norm as to justify them. He ordered her to pay the costs of the housing conditions trial, subject to detailed assessment on the standard basis, with the full £130,000 plus VAT on account under CPR 44.2(8), about 72% of the approved budget (at [83]).

For how claimant housing disrepair costs are assessed on the standard basis, see our guide to housing disrepair costs in 2026, and the glossary entry on a payment on account of costs.

What Harvey v Heaver does not decide

  • Anything historic: whether or since when the property was unfit or in disrepair, when the landlord was on notice of each defect, and whether any earlier unfitness was the tenants’ fault. Those issues, and the section 11 repairing claim with its inherent defect argument, went to the County Court, where the personal injury and Equality Act claims were already headed (at [3] and [5]–[7]).
  • Whether section 9A requires notice of the defect at all. The judge called the point unsettled and did not decide it, because the landlord plainly knew of the present condition by the date of judgment (at [69]).
  • Who the landlord is. The landlord now says she acted as agent for two companies; the judge relied on her formal admission in her Defence and remitted any application to withdraw it (at [76]–[77]).
  • Whether moving out is necessary for these occupants. The decant was refused on the evidence then before the court, not on a finding that it is unnecessary (at [74]).

How DMD Costs Can Help

We prepare and negotiate claimant housing disrepair costs for solicitor firms, from fast track claims to budgeted cases like this one, including payments on account and bills for claims tried in stages. See our housing disrepair costs draftsman service. The fee is fixed and agreed before any work begins.

Sources