This post was written by James Beeton a few weeks ago with a view to being published on 20 March 2020, a date which is significant for reasons which James explains. The post was written before the Covid-19 situation had become as serious as it is now. We wish all of our readers the very best in this difficult period.
Asbestos disease claims by tenants against their landlords are not straightforward. In many cases, the written documents setting out the terms of the relevant lease may no longer be available due to the passage of time. This poses obvious practical difficulties for tenants who want to argue that their exposure to asbestos on the property was due to a breach of a term of the lease. They will usually have to put their case in this way because the landlord does not generally owe a tortious duty of care for dangerous features of the leased property: Cavalier v Pope  AC 428.
Tenants under short-term (less than seven-year) residential tenancies can reasonably say that their lease must have included the statutorily implied obligation to keep the “structure and exterior” of the property in good repair pursuant to s. 11 of the Landlord and Tenant Act 1985 (or its substantively identical predecessor, section 32(1)(a) of the Housing Act 1961). But, even assuming that the relevant feature was part of the “structure and exterior”, does the failure to prevent the natural deterioration of asbestos-containing materials over time constitute a lack of repair (which is covered by s. 11) or is it just a failure to “make safe” a dangerous existing feature of the property (which is not covered)? This question has not been tested and it is likely to be controversial.
Given this uncertainty, 20 March 2020 is – or, at least, eventually will be – a significant date for asbestos practitioners. The Homes (Fitness for Human Habitation) Act 2018 came into force on 20 March 2019. This amended the Landlord and Tenant Act 1985 at ss. 9A and 9B to provide that homes let under short-term tenancies have to be fit for human habitation at the start of the tenancy and must remain so throughout the duration of the tenancy. The obligation also covers common parts of the building in which the landlord has an interest. A home which contains deteriorating asbestos is unlikely to be regarded as fit for human habitation: see the Housing Health and Safety Rating System (England) Regulations 2005, sch. 1, para. 4. The significance of 20 March 2020 is that it marks the end of a grace period for landlords in respect of short-term leases entered into before that date. All premises let under short-term leases must now be reasonably fit for human habitation.
A similar provision applies in Wales, but only where the rent is below limits which are so low that it is unlikely to have any practical application: Landlord and Tenant Act 1985, s. 8. Protections equivalent to those in England are set out in the Renting Homes (Wales) Act 2016, s. 91, but they have not yet been brought into force.