Damp and mould issues in rented properties

Damp and mould issues in rented properties

9:25 AM, 25th September 2024, About 2 weeks ago 52

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Damp and mould issues have long been one of the biggest problems for tenants in rented properties.

Up until recently, tenants could only force landlords to take action if the damp was caused by some kind of ‘disrepair’ in the property – for example, a hole in the roof or crack in the wall that allowed water to seep in.

Although the first ‘hazard’ in the housing health and safety rating system (HHSRS) used by Local Authority Environmental Health Officers to assess properties is ‘damp and mould growth’, tenants living in afflicted properties were dependent upon Councils to arrange for HHSRS inspections to take place.

Then, if the landlord failed to take remedial action, they were again dependent upon Councils to bring enforcement proceedings.

It’s tenant lifestyle issues

Landlords, though, generally take the view that they are not at fault.  If only the tenants would:

  • Keep the heating on
  • Open the windows to ventilate the property
  • Stop drying their clothes on the radiators

All would be well.

The trouble is:

  • Many tenants cannot afford heating, and many rented properties are hard (and therefore expensive) to heat
  • Opening the windows would just make the property colder
  • They usually have nowhere else to dry their clothes.  Some tenancy agreements even forbid washing lines outside

So, what are they to do?

Most tenants will choose eating over heating, and clothes must be washed and dried somewhere.

The ‘Fitness for Human Habitation’ legislation

Up until 20 March 2019 (in England), landlords could ignore tenants’ complaints if there was no actual disrepair at the property.  However, the Homes (Fitness for Human Habitation) Act 2018 changed things.

Under this act, landlords have a duty to

  • Ensure that the property is ‘fit for human habitation’ at the start of a tenancy, and
  • Remains fit for human habitation during the tenancy

Since December 2022, there has been similar legislation in Wales.

What, then, is ‘fit for human habitation’?

The act sets out various criteria, one of which is ‘any prescribed hazard.’

So, a property which is found to have damp and mould under the first hazard in the HHSRS will be ‘unfit’.  Entitling tenants to sue for compensation and an injunction ordering the landlord to bring the property up to standard.

Few claims have been brought, though, as tenants fear retaliatory eviction under section 21.

However, for those claims which have been brought (for example see here), the damages are 100% of the rent.  As tenants cannot get any value from a property which is unfit for human habitation.

Awaab Ishak and ‘Awaabs law’.

In the meantime, in 2020 a toddler Awaab Ishak was found to have died due to respiratory problems caused by the excessive damp and mould in his (social) rented property.

This caused a massive scandal and made government determined to stamp out the problem of damp and mould in rented properties for good – whether they are in the social or the private rented sector.

This began with Michael Gove for the Conservatives but will continue under Labour.

Landlords will have little sympathy if their properties are found to be damp and mouldy.  Claims that it is all due to ‘tenant lifestyle issues’ will receive short shrift unless landlords can prove that they have done all that they can.

The solution?

The solution could well lie in the improvements landlords will need to make in due course, to bring their property up to an EPC C rating.

Properties which are properly insulated, have double or triple-glazed windows and doors, and proper ventilation will not usually suffer much from damp issues.

They will also be cheaper to heat, particularly if they have solar panels and heat pumps installed.  Meaning tenants will be able to afford to heat the property properly (and may have more money left over to pay the rent!).

So, it is to both landlords’ and tenants’ advantage to get these improvements done as soon as possible.

What to do now

At the time of writing, the minimum EPC rating for rented properties is still E and section 21 has not yet been abolished.

However, this is due to change.

The Renters Rights Bill, when it becomes law (believed to be by summer 2025), promises to end section 21 no-fault evictions ‘ immediately’.  And we are told that Energy Secretary Ed Milliband is determined to raise the energy efficiency standard for private and social rented properties to C by 2030.

So, landlords have a limited period of time in which to act.

My advice to landlords is to carry out a thorough check of your property to ensure that there are no damp issues and, if you find anything, to carry out improvement works as soon as possible.

In order to help landlords, I have developed a Dealing with Damp Kit, based on training and a checklist provided to my Landlord Law members by EHO Paul Fitzgerald.

The Kit (which contains detailed video help) is only available to Landlord Law members but we are making the checklist freely available.  It can be downloaded from here.

Conclusion

The time for landlords to put all the blame for damp and mould issues on tenants is past.

That is to say, tenants can be blamed, but only if landlords can show that they have done all that they possibly can to make the property damp and mould-free (so make sure you keep proper records).

This means tackling the causes rather than just wiping down mould-covered walls.

One of the best ways to deal with damp issues is to improve the energy efficiency of the property to level C.  This will kill two birds with one stone –

  • The property will be compliant with the forthcoming energy efficiency rules, and
  • Will be more comfortable and cheaper for tenants to heat – in most cases, eliminating damp and mould issues

Landlords are advised to get work done before the Renters Rights Bill becomes law, as then tenants will no longer be deterred by the prospect of being retaliatory evicted under section 21.  No win, no fee claims companies are probably rubbing their hands with glee at the prospect.

Claims relating to damp and mould problems are likely to result in a finding that the property is ‘unfit’ in which case damages will almost certainly be for 100% of the rent.

You have been warned!

Tessa Shepperson.

Tessa is a specialist landlord and tenant solicitor and author of www.landlordlaw.co.uk.


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GARY RIVETT

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10:01 AM, 25th September 2024, About 2 weeks ago

So, I have an old Victorian property that I have spent considerable sums of money on and I now have an EPC rating of 70 C on this property, however, the tenant still gets mould appearing in the bathroom/toilet area due to her hanging out her washing in there and not properly ventilating. Now, I am confident that this tenant is aware of the reason she is getting this mould and does not complain and does not have any problem with it, she just wipes it off with a bleach solution every so often when it appears.
I only write this as there is no doubt that some LLs out there are not as lucky as me to have such a tenant, and I wonder where they would stand if their tenant was belligerent and did put in an official complaint in their hope of getting free rent?

Tessa Shepperson

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10:07 AM, 25th September 2024, About 2 weeks ago

Reply to the comment left by GARY RIVETT at 25/09/2024 - 10:01
The answer is to keep careful records so you will be able to prove (if challenged) that you have done all that you can and that the issues are actually due to the tenant's behaviour.

For example, data loggers (explained in our Dealing with Damp kit) can be helpful here.

TheMaluka

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10:09 AM, 25th September 2024, About 2 weeks ago

All my properties are double-glazed with an EPC of C and no penetrating damp. Tenants switch off the fan in the bathroom, so we put a lock on the maintenance switch. Tenants then cover the fan with cardboard resulting in motor burn out. I provide dehumidifiers and the tenants sell them. I am at a loss to see how a landlord can be blamed when such tenant actions result in black mould in the bathroom.

It is well established that mould is usually a tenant lifestyle problem, penalising the landlord for something the tenant controls will result is fewer properties to let.

PS there is usually a strong correlation between rent arrears and complaints about black mould.

Tessa Shepperson

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10:15 AM, 25th September 2024, About 2 weeks ago

Reply to the comment left by TheMaluka at 25/09/2024 - 10:09
Again, you need to keep records of this. Judges (in any claim brought) will not be sympathetic to tenants if you can prove that they are causing damage by covering the fan and by selling dehumidifiers.

Provided you can prove that you have done all that you can.

However, with these particular tenants, you may want to consider using section 21 while it is still with us ...

GARY RIVETT

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10:21 AM, 25th September 2024, About 2 weeks ago

Reply to the comment left by TheMaluka at 25/09/2024 - 10:09
If a tenant was to sell something that I supplied to them such as a dehumidifier, I would definitely look to use section 21 (and have done so) while I still could.
It sounds as though you will be in for heaps of trouble there when section 21 is banned.

Bryan

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10:25 AM, 25th September 2024, About 2 weeks ago

Tessa, I am sure most of what you say is good advice in an ideal world and you can throw the law book at landlords and make their life even more miserable. The truth is most landlords do take all precautions in the PRS (rogues landlords accepted). It is the social housing sector that has caused this problem. We deal with these issues as they arise but almost every case I have come across is Tenant Lifestyle. Example, two flats in same building 2 doors apart. One rented by South American couple used to cold conditions in winter and very caring of the property. No issues. Next door rented by Indian couple (with 3-4 yo child) brought over from India for a 4 year job assignment. Within months issues start. They complain UK is cold country, they do not open windows, they turned off fan in bathrooms (isolation switch), claimed heating (all electric) is very expensive, so tried not to use heating. Moved child to their bedroom so they could turn off heating in second bedroom, but left doors open while cooking and boiling rice etc. Despite a full clean up and detailed instructions they continued to abuse the flat. Turning off the heating in bathrooms. Never reported a leak around the sink which destroyed the cabinet below. By the time they left, they had virtually destroyed the flat. Second bedroom was dripping in water down the walls from condensation, same for kitchen. Mould in bathrooms, even the door handles to all the rooms had rusted due to the level of damp they created. They finally blew up the electric rad in the second bedroom due to damp and water ingress from the condensation. Post departure the make-over including replacing bathroom rads due to those rusting away and tackling mouldy walls and replacing window surrounds, blinds that had rusted, kitchen cupboards, broken shelfs in freezer because they never once defrosted, etc etc. Over £4000 to get it back to somewhere close to original condition. Deposit? 5 weeks rent which the independent deposit scheme refused to hand over. They eventually agreed 1/3rd. Did not even pay for the post repair cleaner. New western tenants - no issues. Apart from regular inspections how do we prove they do not open windows? How do we prove they turn off fans, turn off heating? Without spy cameras or sophisticated electronics linked to all ventilation and heating systems what do you suggest? Even then they will deny it. There are monitoring systems for temp/humidity linked to wifi that can monitor the property. But will they let you do this (infringement of privacy - human rights?). Will they let you use their wifi to do this? Your arguments are all one sided and need to support landlords too by ensuring tenants look after the property correctly and follow the guidance. Where is our protection from poor tenants? They came from a climate in southern India where the temperature rarely drops below 30C, so it is a shock to deal with the climate in the UK. But despite instructions and guidance they ignored this and caused extensive damage.

TheMaluka

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10:31 AM, 25th September 2024, About 2 weeks ago

Reply to the comment left by GARY RIVETT at 25/09/2024 - 10:01
I can tell you exactly where the landlord stands. I had a disrepair survey which resulted in a report 99.9% in my favour, the 0.1% being due to damage caused by the tenant. To quote the surveyor:-
"It is considered that condensation and mould are occurring as a result of overcrowding, poor use of ventilation equipment and poor environmental conditions being kept by the tenants."
I won a pyrrhic victory at considerable cost. I gained an eviction after nearly two years.

Tessa Shepperson

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10:37 AM, 25th September 2024, About 2 weeks ago

Reply to the comment left by Bryan at 25/09/2024 - 10:25
I hear what you say and agree. However, since the death of toddler Awaab Ishak, government (both Tory and Labour) have been determined to stamp out damp and mould issues in rented properties. They are not minded to accept claims that it is all down to tenant lifestyle - unless landlords are in a position to prove this.

So landlords need to protect their position by keeping proper detailed records, eg

Of work done to the property before it was let
After regular inspections
After tenants vacate

If as you say you have a similar property where there are no issues, then this is evidence for you. Keep records of this too.

My advice also is to use s21 while we still have it to remove problematic tenants and in future to be very careful indeed who you let in.

Cider Drinker

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10:39 AM, 25th September 2024, About 2 weeks ago

Are councils prepared to cater for those tenants that become homeless because their homes are not fit for human habitation (unless you’re an owner-occupier)?

I can see lots old pre-1919 and over-insulated properties coming to the auction market.

TheMaluka

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10:45 AM, 25th September 2024, About 2 weeks ago

Reply to the comment left by Tessa Shepperson at 25/09/2024 - 10:15
Tessa I agree that maintenance records are paramount and to this end I am paying several thousand pounds to develop an app which enables semi-automatic recording to a database. This is a process which currently my team does manually.

There is another problem which I frequently encounter concerning tenants who complain and then refuse to allow maintenance, deliberately seeking compensation for problems of their own making. Again there is a strong correlation between such behaviour and rent arrears.

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