Damp and mould issues in rented properties

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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