Matthew Lee represents successful Claimants in what appears to be the High Court’s first authoritative interpretation of the fitness for human habitation test under s9A of the Landlord and Tenant Act 1985

On 3 July 2026, the High Court handed down judgment in Harvey v Heaver [2026] EWHC 1671 (KB). This appears to be the first authoritative High Court interpretation of the test for fitness for human habitation under s9A and 10 of the Landlord and Tenant Act 1985.

The Court confined the trial to the current and prospective fitness for human habitation of the Claimants’ home under s 9A and the relief that should follow from any present breach. It determined the condition issue using the uncontested evidence of the single joint expert. This approach was adopted because the current condition of the home and the application for specific performance were the most urgent issues and the reason this part of the case had been expedited for trial. Having determined the condition issue, the Court then considered whether an order for specific performance should be granted under s 9A(5).

The remaining issues, including historic fitness and disrepair, notice, damages, personal injury and discrimination claims, were remitted to the County Court to be determined.

The conditions in the property

A single joint expert surveyor was instructed and reported in April 2026. The Judge considered the expert’s findings in this report to decide whether those matters either individually or cumulatively rendered the Property unfit [12-14]:

Damp and mould

The expert found damp and mould to be present in every habitable room and in both roof spaces due to a combination of limited thermal performance and active moisture ingress through the chimneys, external walls and roof [15-17].

The First Defendant initially contended that the Claimants’ failure to use the central heating and their generation of condensation from normal daily activities, together with the closure of trickle vents in one room and the failure to change the filters in the roof-space ventilation unit, caused the damp. She withdrew at trial the contention that the Claimants’ actions had wholly or mainly caused any unfitness [19]. The Judge considered the contention, to the extent it was maintained, to be at odds with the unchallenged expert evidence. He also relied on the HHSRS Operating Guidance, which recognises that a dwelling must be able to cope with normal moisture production, and on Government guidance stating that it is unreasonable to attribute damp and mould to tenants’ ‘lifestyle choices’; that the fundamental cause will be building deficiencies, inadequate ventilation, inadequate heating or poor energy efficiency rather than tenants’ normal domestic activities; and that tenants cannot be expected to reduce moisture levels if the home does not enable them to do so [20].

As such, the Judge was “satisfied that the damp and mould is wholly or mainly attributable to a combination of the limited thermal performance of the construction and active moisture ingress through the chimneys, external walls and roof due to defects or disrepair. These are the First Defendant’s responsibility as landlord” [21]. The Judge went on to conclude, having regard to the Government’s guidance in ‘Understanding and addressing the health risks of damp and mould in the home’, that “the damp and mould is so widespread as to present a risk to the health, including the mental health, of any occupant of the Property regardless of any particular vulnerability. In addition, I find that the four children … are at particular risk by reason of their youth” [22-23].

Excess cold

The expert made no specific finding of excess cold, but did find that the Property had reduced thermal performance because its walls were uninsulated, its roof insulation was below the current recommended standard and in places wet, and it had an EPC rating of E. The Judge found that the reduced thermal performance, together with the EPC rating of E, gave rise to a risk that the Property would be excessively cold during winter [24].

Asbestos

An asbestos survey commissioned by the First Claimant and relied upon by the expert identified chrysotile (white asbestos) in the textured ceiling coating of Bedroom 1. The ceiling was cracked, deflected and bulging, with water penetrating it and a danger of collapse. The Judge concluded that the asbestos was therefore liable to be further disturbed and to release fibres, presenting a risk to the health of the Claimants, particularly the children [25-27].

Other matters

The expert also identified evidence of an active rodent infestation with no control measures in place [29]. The expert further reported that the vent pipe to the septic tank was damaged [30] and that there were defects to the oil supply serving the oil-fired central heating system [31]. The Judge later treated these as additional matters supporting the finding of present unfitness [67-68].

Statutory interpretation of unfitness

Having found those matters established, the Judge then considered whether the Property  was fit for human habitation. The Judge highlighted the absence of authoritative interpretation of sections 9A and 10 of the Landlord and Tenant Act 1985 [41], such that the Court was required to interpret the meaning of ‘unfit for human habitation.’

The Judge went on to outline the historic legal framework in detail at paragraphs 37 – 52 of the judgment, finding that fitness is not a new concept and that the test for unfitness has developed over the decades along four strands, each bearing on the construction of section 10 as it exists today: (1) the private-law implied covenant of fitness in low-rent lettings, now disapplied in England; (2) the public-law standard of fitness underpinning local authorities’ powers in relation to substandard housing, now contained in the Housing Act 2004; (3) the duty of builders under the Defective Premises Act 1972; and (4) the statutory-nuisance regime under the Environmental Protection Act 1990. 

Pulling those strands together, the Judge identified the following central points:

1. The introduction of the new implied covenant as to fitness for human habitation in section 9A addressed the shortcomings of the former section 8 implied fitness regime: the rent threshold was too low for the covenant to be effective, the list of matters in section 10 was incomplete, and the section 11 ‘repair’ covenant left tenants without a remedy for substandard accommodation caused by factors that were not the result of ‘disrepair’ [44-45].
    
2. In assessing fitness, the same relevant matters and test continue to apply as before, so that a property that was ‘unfit’ before the amendment of section 10 would also be unfit now. The core test is unchanged and the older authorities remain reliable, including Summers v Salford Corporation [1943] AC 283 and Rendlesham Estates plc v Barr Ltd [2015] 1 WLR 3663, which support the proposition that fitness has two distinct components: premises may be unfit if the living conditions present a risk to the health or safety of the occupiers or have a sufficiently negative effect on the occupiers’ comfort and convenience, even if there is no risk to health or safety [54].
    
3. The presence of any prescribed hazard is relevant, individually and collectively, to the Court’s assessment of whether the property is so far defective in one or more of the relevant matters that it is not reasonably suitable for occupation in that condition, and therefore unfit for human habitation under section 10(1). The Court’s assessment does not depend on a local authority HHSRS finding of a Category 1 or Category 2 hazard, nor must either threshold be met before a ‘prescribed hazard’ is relevant under section 10(1). Such a local authority assessment would, however, be strong evidence of unfitness [56-57].

Applying those findings, and following a three-day trial, the Judge held that the Property was unfit for human habitation as of 25 June 2026, finding that “it is so far defective in several of the matters to which section 10(1) directs attention that it is not reasonably suitable for occupation in its present condition. Those matters include freedom from damp, repair, drainage and sanitary conveniences and a number of the hazards prescribed under section 2 of the HA 2004 and listed in Schedule 1 to the HHSRS Regulations, as amended, namely damp and mould growth, asbestos, structural collapse and falling elements … and domestic hygiene … Each is incorporated into the fitness standard as a prescribed hazard. I am satisfied that, individually and collectively, those matters render the Property not capable of occupation for a reasonable period without risk to the health or safety of the Claimants. I am also satisfied that, regardless of risk, those matters render the Property not capable of occupation for a reasonable period without the undue inconvenience or discomfort of the Claimants” [62].

The Judge considered the most serious failing to be the damp and mould, describing the levels of damp as ‘frankly, deplorable’. The Judge held that “the damp is so widespread and pervasive that it not only compromises the comfort and convenience of the Claimants but is a risk to their health, including mental health, and a ‘prescribed hazard’ within the meaning of section 10(1) LTA 1985 … In my judgment the extent and degree of the damp are sufficient to make the Property unfit without the need to consider any of the other relevant factors” [63].

The Judge held that fitness must be considered in the round and over a reasonable period of time [64]. As such, while the expert described the visible mould as ‘generally of a light extent, with localised areas of moderate intensity’, it was necessary to read that finding bearing in mind that the moisture readings were so high that there was a continuing and substantial risk of further mould development and that internal conditions in autumn and winter would probably be less favourable. As such, “even if the mould in its present state is no more than minor there is a real and substantial risk that the mould will develop and spread given the damp conditions, particularly in winter. The mould puts the Claimants’ health, including mental health, at present and future risk … and renders the Property unfit for human habitation when taken together with the damp” [64].

The Judge also considered that the damaged asbestos was a risk to safety and to health, including mental health (because it was a constant source of anxiety) and was a hazard sufficient on its own to render the Property unfit until it was repaired or replaced [66].

The Judge further concluded that the active rodent infestation (engaging the domestic hygiene hazard) and the broken vent pipe to the septic tank (raising the relevant factor of drainage and sanitary conveniences) were additional grounds for the finding of unfitness [67].

The Judge considered that he had insufficient evidence to find that the Property was unfit by reason of excess cold [65], but, taking the remaining matters individually and collectively, he was satisfied that the Property was unfit for human habitation as at 25 June 2026 [68].

As such, the Judge made an order for specific performance compelling the First Defendant to carry out the works in Table 1 and items 3, 4, 6, 7 and 22 of Table 2 of the expert’s report [70-72]. 

Decant

The Claimants also sought an order requiring the First Defendant to provide and pay for temporary alternative accommodation while the works were carried out. This was refused by the Judge for reasons including the following [74]:

1. There is no equivalent freestanding right for a private tenant;
    
2. The usual remedy, where a tenant has to move out so that works can be carried out, is a claim for damages for the cost of doing so, ordinarily determined at the quantum stage.
    
3. As a necessary preliminary, the Claimants would in any event have had to prove that moving out was necessary to enable the works to be completed. That was not made out on the evidence.

The parties had, however, agreed that the Claimants would move out and that rent at the Property would be suspended during the works, so that the Claimants would not be liable for rent at two properties at once [75].

Comment

This is an important case and likely the first binding High Court authority on the test that the Court must apply when determining whether a property is fit for human habitation under s 9A.

Readers should note that:

1. The overarching statutory test remains reasonable suitability for occupation. The court must consider the matters identified in s 10, both individually and cumulatively, and decide whether the dwelling is so defective in one or more of those respects that it is not reasonably suitable for occupation in its condition. Where a prescribed HHSRS matter is relied upon, “any risk of harm” to the health or safety of an actual occupier is sufficient to make it a hazard. Temporary harm and harm to mental health are included. The existence of a hazard is relevant to, but does not automatically determine, the ultimate question of fitness.
    
2. Risk to health or safety is not essential in every case. Fitness has two distinct aspects. A dwelling may be unfit because its condition presents a risk to health or safety, or because it causes sufficiently serious inconvenience or discomfort, even where no health or safety risk is proved. “Unfit” is not synonymous with “uninhabitable”. A single defect, including a defect confined to one room, may render the whole dwelling unfit.
    
3. Fitness must be assessed over a reasonable period, not merely by reference to conditions on the inspection date. The court took account of the likelihood that damp and mould would worsen in autumn and winter. Light or moderate visible mould on one inspection date did not answer the claim where the underlying moisture readings demonstrated a continuing and substantial risk of further mould growth. Practitioners should therefore consider seasonality, the underlying building conditions and reasonably foreseeable future deterioration.
    
4. The HHSRS informs, but does not replace, the s 10 assessment. Prescribed HHSRS hazards are expressly relevant to fitness. The court does not need a local authority finding of a Category 1 or Category 2 hazard before finding a dwelling unfit. Conversely, a local authority assessment identifying such a hazard would be strong evidence of unfitness. The HHSRS Operating Guidance can provide an important technical framework, but the statutory conclusion remains for the court.
    
5. A claim under s 9A is distinct from a disrepair claim under s 11. The court may find a dwelling unfit without determining that the landlord is in breach of the repairing covenant under s 11. This is particularly important where the problem arises from design, construction, inadequate thermal performance or another deficiency that may not amount to disrepair in the conventional sense. The court expressly made its finding of present unfitness without deciding the s 11 claim.
    
6. The ultimate question of fitness is for the judge, not the expert. The expert’s use or non-use of the statutory label ‘unfit for human habitation’ is not determinative. The expert’s proper role is to address the physical condition, causes, consequences and remedial works. The judge then applies the statutory test. Nevertheless, expert evidence may be central. In this case the unchallenged single joint expert’s evidence, including the adopted asbestos survey, provided a sufficient technical basis for the findings on present condition.
    
7. Under s 9A(3), the landlord avoids liability only where the unfitness is wholly or mainly attributable to the tenant’s breach of covenant. A tenant default that is real but merely secondary is insufficient. The ordinary obligation to act in a tenant-like manner does not extend to keeping the structure and exterior weatherproof. In damp and mould cases, normal domestic activities such as bathing, cooking and drying clothes should not simply be characterised as “lifestyle choices” where the dwelling itself cannot cope with ordinary moisture production.
    
8. Any defence based on tenant conduct or a failure to provide access should be pleaded clearly and supported by appropriate evidence.
    
9. Actual personal injury is not a prerequisite to unfitness. The court found that the property presented a risk to the health, including the mental health, of any occupant without deciding the disputed evidence about the particular medical consequences for this family. Proof of personal injury, medical causation or a claimant’s particular vulnerability is therefore distinct from proof of unfitness, although vulnerability may strengthen the assessment of risk and may be important when considering remedies.
    
10. Specific performance is a practical and significant remedy under s 9A(5). The court held that damages were inadequate because an award of money would not secure the works needed to provide a habitable home. It ordered the landlord to undertake specified works. Practitioners seeking mandatory relief should ensure that the proposed order identifies the works, timetable and obligations with sufficient precision to be enforceable. In this case the order was framed by reference to the itemised, costed and timed tables in the expert’s report.
     
11. A finding of unfitness does not automatically produce a landlord-funded decant. A private tenant has no freestanding right to alternative accommodation equivalent to rights that may arise under a social landlord’s tenancy terms or decant policy. To obtain an order of the kind sought in this case, the tenant must establish the remedial basis for the order and prove that moving out is necessary. Ordinarily, reasonable expenditure on alternative accommodation, removal and storage will be claimed as damages. Here, the decant application was refused because necessity had not been established on the evidence, even though the court had found the dwelling unfit and ordered the works.
     
12. The notice question remains unresolved. The judgment is not authority that liability under s 9A arises only after notice, or that no notice is required. The judge expressly left that question open because the landlord plainly had actual knowledge of the present condition. Practitioners should therefore continue to plead and prove notice or knowledge where relevant, pending appellate authority.
     
13. Service of a s 21 notice does not suspend the fitness obligation. A s 21 notice does not itself terminate the tenancy. While the tenancy subsists, the landlord remains bound by the implied fitness covenant and remains liable to the remedies required to enforce it.
     
14. Costs and proportionality require careful attention. The housing-conditions trial alone occupied three days. The Claimants’ approved costs budget was £180,000 plus VAT. The Court ordered costs on the standard basis, subject to detailed assessment, with £130,000 plus VAT payable on account.

The remaining aspects of this claim, including alleged historic breaches of covenant, harassment, personal injury, discrimination and damages, have been transferred to the County Court for determination. 

Matthew Lee, instructed by Mark Harvey of Mark Harvey Freelance Law, represented the Claimants at trial. Cara Hall and David Carter assisted with other matters throughout the proceedings.