Tom Entwistle comments: That’s it then! Landlords (private and social), according to guidance put out by the Housing and Health secretaries Michael Gove and Steve Barclay respectively, are to be held responsible for damp and mould in rental property, regardless of the cause.
The latest government guidance on the matter “Understanding and addressing the health risks of damp and mould in the home”, Published 7 September 2023, makes this very clear:
“Landlords must ensure that the accommodation they provide is free from serious hazards, including damp and mould, and that homes are fit for habitation. They must treat cases of damp and mould with the utmost seriousness and act promptly to protect their tenants’ health.
So far, that’s always been the case and is a legal requirement, but what follows on is new:
As this guidance also makes clear, tenants should not be blamed for damp and mould. Damp and mould in the home are not the result of ‘lifestyle choices’, and it is the responsibility of landlords to identify and address the underlying causes of the problem, such as structural issues or inadequate ventilation.”
Something to bear in mind about this. We are talking about government guidance here, not primary or secondary legislation. It is something to be followed seriously, but it does not mean you won’t have any sort of defence if you have behaved responsibly as a landlord and the tenants have let you down.
Nevertheless the guidance is well worth reading carefully. You will need to be attentive to the state of your rental properties which, to my mind means regular inspections. I suggest these be formalised with good checklists and good documentation. Remember, there are people who are in judgement of you on this, they often have little or no practical experience of the problem, so your documentary evidence is crucial, it must be clear and conclusive.
It’s just another task in the already overtaxed role of the landlord, but one of increasing importance. On the plus side it is perhaps a reasonable excuse to impose on the lives of your tenants and carry out regular inspections.
Tessa Shepperson, a property specialist solicitor who writes and runs the LandlordLaw.co.uk service says:
“As far as I cans see, this is just a guidance document. It is not secondary legislation (for example).
So far as a Judge is concerned, the guidance is something they should refer to when making a decision, and it will be very ‘persuasive’. However, Judges are not obliged to follow the guidance if they do not consider it appropriate (although they would probably need to explain why in their Judgment if so).
Damp is always difficult. Things are different since the coming into force of the fitness for human habitation rules as now, if a property is badly designed and subject to damp for that reason, a landlord will probably be liable. They can no longer push it all onto the tenants if there is no actual disrepair.
However, I don’t think that this totally excuses tenants – they still have a legal obligation to behave in a tenant-like manner.
So if the tenants bring a claim, and the landlord believes that they are not behaving in a tenant-like manner, he may have a defence, provided he can prove this, on the balance of probabilities.
For example, if the property has been damp and mould-free for the past 20 years and he has photographs showing misuse of the property by the tenants in ways that will encourage the damp and mould, then I think he will have a defence.
At the very least, the tenants will have any award reduced due to contributory negligence.
However, landlords should be aware that the law has changed and the balance has tilted more in favour of tenants.
As a landlord of forty years or so standing I think I have a good understanding of what causes mould in a residential home, and as all experienced landlords know, most of it is caused by the way the occupants are living. Controversial as that statement may seem, which goes totally against that second paragraph of the guidance above, it is in my view incontrovertibly true.
You know this for sure when you have a property which has been free from mould for a whole series of tenants, then one comes along and before long the tops of the window openings and ceilings are becoming covered with the horrible black spots and dark grey mould, a picture we see so often on those TV reports, where the landlord always cops for the blame.
I once had a commercial shop tenancy let to hairdressers. It had a perfectly adequate heating system and a tumble drier in the back of the shop. But to save money the tenant insisted on drying wet towels on a large rail above a portable LPG heater – these heaters produce copious amounts of moisture, and along with that from the drying towels, it amounts to a lot of moisture. Result, a 40 foot long shop ended up with a ceiling covered in black mould and spores.
I was concerned about the safety aspect of this heater as we had two floors of offices above, I was concerned about my office tenants’ safety, so I called in the local fire officer in an attempt, unsuccessfully as it turned out, to try to persuade the tenant to change her ways. I think this demonstrates the difficulties landlords have with this issue.
Not all one sided
It has to be said that there are a number of contributing factors that can be attributed to the landlord and for which they are undoubtedly responsible.
Given the right circumstances, condensation and mould can occur in any property, from a new-build house or flat to the grottiest Victorian terrace, the latter representing a substantial part of the rental property stock in the UK.
The older properties are the most likely to suffer from condensation and mould because they are usually poorly insulated (solid walls), no wall or underfloor insulation, and perhaps poor loft insulation, and if there’s no double glazing, they are even worse.
The heating systems are often not up to par, with at worst open or gas fires, or storage heaters. Gas or oil central heating is better but how old is the boiler? Are the radiators properly sized and do they have thermostatic controls?
Given these sorts of rentals, typical of the bottom end of the rental market, it’s perhaps not surprising that the tenants are living in cold and damp substandard conditions. They find it too expensive to heat the property properly, so they skimp on heating to save money. It never gets up to a temperature that keeps damp and condensation at bay, by having the whole house nice and warm.
The walls become so deeply cold that moisture is absorbed instantly on contact. It becomes a vicious cycle where cold becomes colder, black mould builds up, and eventually the plaster and masonry start to decay and crumble.
Ventilation is non-existent in these properties because the slightest draft introduces more cold air for the shivering tenants. This in turn exacerbates the condensation problem: Because it’s so cold all the windows are kept tightly shut, and I’ve even seen some examples where window trickle vents and extractor fans were “blocked up” with rags to stop a flow of cold air from making it even colder.
What causes damp?
There are four main causes of damp:
(1) rising damp which emanates from the foundations up and shows itself on the lower parts of ground floor walls, skirtings, floorboards etc., and if left unchecked can lead to wet and dry rot in floor timbers.
(2) penetrating damp which results from faults in the structure of the building, leaking roofs, gutters, downpipes, window frames, wall cracks etc. This can also damage the fabric of the building if left unchecked and again can result is wet and dry rot.
(3) condensation, perhaps the most common cause of black mould and mildew on fabrics, clothes, walls and wallpaper and ceilings. It appears on the upper parts of walls, windows and on the ceiling. It is caused by steam and damp moist air flowing upwards in the home (hot air is lighter than cold air, so it rises) and settling on cold surfaces such as windows, walls and ceilings.
(4) One further cause is water leaks from water pipes, waste pipes, baths, showers and toilets, which would cause staining and eventually mould and wet and dry rot in timbers. This usually appears on floors and ceilings.
Two main causes of condensation?
The most common causes of condensation damp are (1) poor ventilation and (2) poor heating.
This all produces the black mould that is so injurious to health for those people who are living with it, and as we’ve seen in the case of poor little Awaab Ishak, dying with it – the toxins contained in some types of condensation mould spores are quite deadly when breathed in over a period of time.
Landlords have to take responsibility
Would you want to be held responsible for the death of a tenant’s child like Awaab Ishak? In his case the family were in a social housing complex, a flat which became riddled with condensation and mould which they lived with for a number of years, despite complaints to their landlord. I would guess your answer is no to that question, you wouldn’t want that on your conscience!
So the government is suggesting that you are responsible for the health and welfare of your tenants no matter how they behave in your property, that much is now very clear. How can we make sure we protect our tenants and ourselves?
Implications for landlords and agents:
There are now many ventilation system installers on the market who will come along and give a free survey to any landlord wanting to improve the property by making sure that however the tenant behaves, black mould will never appear.
* PIV (Positive Input Ventilation) units provide whole house ventilation and have been proven as suitable options to deal with condensation and mould in homes. PIV units are available for Loft and Wall mounting (houses and flats) and are available with heater and filter options to enhance comfort and indoor air quality. Positive Input Ventilation (PIV) is an energy efficient way of pushing out and replacing stale unhealthy air with drier fresh air. This system will gently introduce filtered air into the home and increase the circulation of fresh air around the property, improving indoor air quality and it will prevent condensation and mould.