Harvey v Heaver: High Court gives first authoritative reading of the fitness for human habitation test

The High Court has delivered what appears to be the first authoritative interpretation of the implied covenant of fitness for human habitation introduced by the Homes (Fitness for Human Habitation) Act 2018, more than seven years after it came into force.

Paul Bowen KC, sitting as a deputy judge of the High Court, handed down his reasons on 3 July 2026 in Harvey v Heaver [2026] EWHC 1671 (KB), having ruled in the claimants' favour at the end of a three-day trial. The claimants, a family of six renting a mid-nineteenth-century property near Chichester, alleged breaches of the covenants implied by sections 11 and 9A of the Landlord and Tenant Act 1985. Their landlord contested the claim; the managing agent took no active part.

The judge narrowed the trial to a single question: whether the property was presently unfit under section 9A, and what relief should follow. He remitted the historic disrepair allegations, the section 11 claim, and questions of attribution to the County Court, to be tried alongside deferred personal injury and Equality Act claims. Deciding them now, he held, would risk issue estoppel and inconsistent findings, citing Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46.

Finding that counsel could point to no authoritative interpretation of the amended sections 9A and 10, Bowen KC traced the fitness standard through four historical strands: the private law implied covenant, the public law regime now in the Housing Act 2004, the Defective Premises Act 1972, and statutory nuisance. He concluded that the core test in section 10 had been carried over unchanged, so that older authority remained a reliable guide. Summers v Salford Corporation [1943] AC 283 and Rendlesham Estates plc v Barr Ltd [2015] 1 WLR 3663 established that fitness has two distinct components: whether living conditions present a risk to health or safety, and whether they impair the occupier's comfort and convenience even absent such a risk. A single defect in one room may render a whole dwelling unfit.

The judge also held that the amendment importing "any prescribed hazard" brought about a partial convergence between the private and public law protections, drawing in the matters listed in the Housing Health and Safety Rating System Regulations, recently reduced from 29 to 21 categories. A finding of unfitness does not, however, depend on a category 1 or 2 hazard being established.

On the agreed evidence of a single joint surveyor, the judge found the property unfit as at 25 June 2026. Damp and mould were present in every habitable room and both roof spaces, with saturated moisture readings the judge described as deplorable, caused by defects for which the landlord was responsible. The landlord's contention that the damp was attributable to the tenants' conduct, engaging the high threshold in section 9A(3), was withdrawn and rejected. A cracked, bulging ceiling bearing a damaged asbestos coating above a bed, with water penetrating it, was found sufficient on its own to render the property unfit.

Bowen KC ordered specific performance of the remedial works under section 9A(5), holding damages an inadequate remedy. He refused the application for a funded decant, noting that private tenants have no equivalent right to social tenants and that the expert had not said vacation was necessary. A late application to amend the defence was refused, and the landlord was ordered to pay costs on the standard basis with £130,000 plus VAT on account.