As the temperatures drop again, a key problem that Landlords and Tenants are facing is condensation, damp, and mould in rented properties. The question is, who is responsible?
The Landlord’s ResponsibilitiesWhether a property is fit for human habitation is a factual enquiry which is guided by Section 10 Landlord and Tenant Act 1985 and the Housing Act 2004 which set up the Housing Health and Safety Rating Scheme (“HHSRS”) defined in the Housing Health and Safety Rating System (England) Regulations 2005.
In relation to condensation and mould in particular, Section 10 Landlord and Tenant Act 1985 provides that a property could be deemed not fit for human habitation unless there is “freedom from damp” or ventilation at the property. Both of those issues in turn contributes to with damp and mould even more prevalent in modern properties.
The Housing Health and Safety Rating System was introduced by the Housing Act 2004 as a method for local authorities and environmental health departments to assess potential hazards in properties which have a direct impact on the health and safety of a Tenant. If the hazard identified is classified as a Category 1 Hazard, this means the hazard presents an imminent risk of serious harm to the occupants. In these circumstances, the local authority has an obligation to take action against the Landlord to resolve the issue. All other hazards are Category 2 Hazards which are less serious, and the local authority has the power to take action however is not obligated to do so.
Landlords’ responsibility for condensation and mould include:
- Ensuring the property is well ventilated particularly in rooms where there are high levels of moisture for example, extractor fans in kitchens and bathrooms;
- Ensuring the property has an adequate damp proof course;
- Ensuring any structural or exterior defects to the property are remedied;
- Ensuring any leaks or plumbing issues are remedied to prevent moisture;
- Improving the Property’s insulation and has water-tight windows;
- Air bricks and trickle vents in windows allowing flow of air;
- Ensuring electrical appliances such as dryers are ventilated outside the property or have condenser tanks;
- Forbidding drying clothes on radiators although difficult to enforce;
- Informing the Tenant the Property must be heated to avoid damp and condensation.
The above list is by no means exhaustive. Section 11 Landlord and Tenant Act 1985, states Landlords have an obligation to “keep in repair the structure and exterior of the dwelling-house”. Penetrating or rising damp resulting from a defect in the Property therefore falls under the Landlord’s implied obligation to repair. A landlord could fall foul of their repairing obligations where they are unwilling to investigate or remedy mould in the property (if possible). It is important to note that if left untreated mould and damp can have a severely negative impact on an individual’s health. This can include, respiratory problems, allergies, eczema. Where a Landlord is in breach, a Tenant could be entitled to compensation.
When a complaint of damp, condensation or mould is received, it is crucial Landlords respond and investigate within a reasonable time frame. We would recommend an expert report is obtained to accurately identify the cause of the issue. Should the cause fall within the Landlord’s responsibility this should be remedied as soon as possible. Alternatively, they have a report to detail the likely causes to demonstrate the appropriate actions to be taken.
There is, however, a fine line between remedying issues of disrepair and betterment. As a general rule a Landlord is not required to carry out works which could be considered betterment. In many cases, however, the Landlord may consider carrying out the necessary works to protect their investment.
Landlords have a legal responsibility under the Homes (Fitness for Habitation) Act 2018 to ensure that a property is fit for human habitation at the start and throughout a tenancy which exceeds the legislation quoted above. Where a Landlord has failed to comply with their legal obligations, the Tenant can take legal action against the Landlord seeking compensation and an order from the Court stating the Landlord must carry out certain works. Use of this Act is becoming common place therefore Landlords should beware.
InventoryLandlords should ensure a detailed inventory of the Property is conducted prior to the Tenant taking occupation of the Property and a copy is retained on file. Landlords should make sure there are no signs of damp or mould in the Property.
The Tenant’s responsibilities It is a Tenant’s responsibility to ensure the Property is maintained on a day-to-day basis. Where there is an issue with damp and mould it is important for Tenants to report this to the Landlord as soon as possible, so that the matter can be investigated without further delays. It is important to note, a Landlord is not liable for repair until they are aware/notified of any defects.
A Landlord is not responsible for disrepair that has been caused by a Tenant’s breach of covenant or failure to act in a tenant-like manner. Often the Tenant’s lifestyle will impact damp and mould in the Property and there are a number of preventative measures which can be implemented to assist in controlling condensation in the Property. This can include:
- Ensuring the Property is kept warm and well ventilated
- Using the extractor fan or opening windows after showering to properly air the bathroom
- Drying clothes outside where possible
- Use of a dehumidifier to remove moisture from the room
- Covering pans when cooking
- Wiping down windows and sills
An expert survey or report may reveal that in the absence of a structural defect, the responsibility of damp and mould in the property may be the responsibility of Tenant, particularly if the Tenant’s use of the property has caused excess condensation in the Property. It is just as important for the Tenant to maintain the property as it is for the Landlord to comply with his repairing obligations.
Where the Landlord carries out works as a result of the Tenant’s failure to maintain the property, they may in some cases be in a position to recover losses from the Tenant, often by way of a claim against the Tenant or at the end of the Tenancy by making deductions to the deposit via the tenancy deposit scheme.
Mould and damp can be a serious issue for both the Landlord and the Tenant. We would recommend both the Landlord and the Tenant both monitor the presence of condensation, mould, and damp in the property throughout the tenancy and work in unison to overcome such issues.
Information Source: Painsmith Solicitors
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