Taking a Tenant to Court Over Condensation

Hi Rob, I think it is highly unlikely that the case will be heard in Court until after the after the TDS has ruled on the dispute. If the case does get to Court that's likely to be the first question asked. From what you have said about the low quality of the ingoing inventory, I hate to tell you this but, I reckon your chances of winning the tenancy deposit dispute hearing, never mind the Court Case, are less than 50/50. I'm not suggesting for one minute you give up, although other might do so, but I would be very interested to be kept updated on progress and the eventual outcome.

I suppose that the issue here is also whether you have correspondence to support your claims regarding your warnings to the tenants on condensation. They could easily state that they advised you of the issue and you took no action. If, however, you can show that you warned them on several occasions but they did not follow your guidelines, you may have a chance. Best of luck.

I have to agree that you need the reports when you inspected property and an ingoing inventory with photographic evidence. Its really hard standing in a court room without top proofs. I have done it and felt so inadequate when the judge asks for evidence and most tenants tell so many stories . I used to carry out my own inventories but not anymore. They do NOT stand up in court. I would say have a go on what you have as evidence but from now on do things differently.Youll see what I mean when you leave the courtroom lol. Oh by the way whatever you do make sure you attend court.I lost out last year myself on this one. Do attend. And please let us know how it goes.

Lesson to learn for all. Always do an inventory on the day of hand over always get the tenant check and sign for the contents and the decor. Always take photo's, I always take a video of the property on the day and make sure that the tenant has copy of both. I always supply leaflets about condensation and how to recognise it and how to prevent it, this is also signed for at time of handover.
Did you carry out inspections during the rental period, to check the property out and find out maintenance issues. Alway record and send copy to tenant giving reasonable time to correct then re visit.
We now have a cost effective way of providing ventilation, provide ceiling vents to loft space or in the case of a flat you can provide passive venting, cost on eBay about £250, cheaper than refurb ink.
Your problem will be proving beyond reasonable doubt the tenant is wrong.
My advice is always take the time at the beginning this will save time at the end. I allow nearly 2hours to do the handover. To date never had to go to court or had a dispute.

Rob, the key thing here is the Inventory without the tenants signature. It is essential that an Inventory/Schedule of Condition report is agreed and signed by the landlord/agent and the tenant at the point of check-in, should any dispute arise at the end of the tenancy. We would recommend that you continue your dispute, as the tenant may 'cave in' if what you say is correct, however without their signature and other sufficient evidence, the deposit scheme or court may award in the tenants favour. If you have proof of your 'education' of the tenant and the survey which shows 'tenants lifestyle' as the cause, this may help your case. Good luck, but please ensure all of your future Inventories are signed by the tenant.

AS YOU KNOW THERE ARE WEAKNESSES IN YOUR CASE, BUT ITS OBVIOUS THAT THE MOULD WASNT PRESENT AT THE BEGINNING OF THE AST AS OTHERWISE WHY WOULD THE TENANT MOAN ABOUT IT SUBSEQUENTLY. I INSPECT MY PROPERTIES DURING COLD WEATHER FOR CONDENSATION/MOULD AND SEND TENANTS AN E-MAIL WITH ADVICE AS WELL AS PUTTING THEM ON NOTICE. I FIND SOME TENANTS HARDLY USE THE HEATING. OTHER BIG ISSUES ARE UNVENTED TOMBLE DRIERS. THESE ARE BANNED BY MY AST. WAS AN AGENT RESPONSIBLE FOR THE HANDOVER? IF SO WHY NOT SUE THEM. REFER TO S.11 OF THE LANDLORD AND TENANT ACT 1985 AND POINT OUT THAT THE MOULD WAS NOT DUE TO DISREPAIR BUT BREACH OF THE TENANTS OBLIGATIONS BOTH IMPLIED BY COMMON LAW AND EXPRESSED IN THE AST. HERES SOME CASE LAW:
It is implied that the Tenant will not commit acts of waste under the Law of Tort, will not carry
out unauthorised alterations and in Warren v Keen 1954 it was held that the Tenant will occupy the premises in a tenantlike manner and take reasonable steps to mitigate or prevent loss or damage. In his summing up Lord Justice Denning stated:
‘Apart from express contract, a tenant owes no duty to the landlord to keep the premises in repair. The only duty of the tenant is to use the premises in a husbandlike, or what is the same thing, a tenantlike manner. That is how it was put by Sir Vicary Gibbs, Chief Justice,
in Horsefall v. Mather. Holt's Nisi Prius, at page 7, and by Lord Justice Scrutton and Lord Justice Atkin in Marsden v. Edward Heyes Ltd., 1927, 2 King's Bench, at pages 7 and 8. But what does it mean, "to use the premises in a tenantlike manner"? It can, I think, best be shown by some illustrations. The tenant must take proper care of the place. He must, if he is going away for
the winter, turn off the water and empty the boiler. He must clean the chimneys, when necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable tenant would do.’
GOOD LUCK AND LET US KNOW WHAT HAPPENS. YOU HAVE A GOOD CASE BUT BEAR IN MIND THE LAW IS AN ASS AND JUDGES ARE BIASED.

In McNerny v Lambeth Borough Council 1989 the case concerned the effects of condensation causing the plaintiff to suffer from colds and other ailments. The claim failed as although the single pane windows and solid walls were the cause of the condensation, they could not be said to be in disrepair (liability under The Defective Premises Act goes no wider than the repairing covenant).

If it is blackspot mould, by far the most common cause is condensation, ask any damp specialist.......Lack of airing the property and over-crowding are the most common contributory factors which in your case amounts to tenant damage.

I have received compensation under the rent bond scheme previously due to the exact same damage. Although, the property was newly refurbished and the inventory was carried out by the council department that agreed to pay out.

Nonetheless, by far the primary cause is condensation and if you can prove that you had advised the tenant, I would feel somewhat confident. Especially with something in writing from a damp specialist. If you have any communication where the tenant makes reference to any advice you had given on this matter, all the better. Also do plenty of Internet research to find articles that support your case.

I think your unlikely to win regardless of the fact your right, as you haven't clear documented evidence to support your claim.I'm guessing you haven't sought legal representation as i'd be surprised if your council would have encouraged you down this route.Cut your losses and move on,learning from the experience,next time pay for professional inventory,get it signed and install adequate ventilation making sure you maintain it.consider introducing over occupancy clause to your lease,thus restricting the number of 'family members' taking up residence in the property.

Condensation is caused by moist warm air meeting cold surfaces. Mold form when condensation (water) is left for extended periods. Moist warm air is produced by whoever lives in the property but cold surfaces are to do with of the fabric of the property. It is also unrealistic to expect tenants to keep windows open in the winter to ventilate (heat loss) or to adjust their lifestyle to suit the landlord or the property (you cant expect Indians not to cook curry or not have their visiting parents or in laws from India/Pakistan or wherever stay over for extended period !). The only way not to have mold is to insulate and ventilate. Tenant lifestyle may aggravate the situation but without insulation and ventilation, the problem will persist.

Bleach is cheap and effective for killing mold spores. Just brush it on and leave to dry. Depending on how bad it is, may require multiple application over a few days. Make sure spores are dead before repainting.

You didnt say how long you have had the property and what it was like with previous tenants, if any, but one would expect some degree of refurbishment after 5 years at any event although £3k seems like a lot without some degree of wilful damage.

Lastly, have you tried to come to a compromise with your ex-tenant ? Head banging is often more to do with emotions than $ and sense - and often regretable after the event.

Good luck with pursuing your tenants in court, but you may also want to think seriously about insulating the cold surfaces and ventilation and not let to people with different culture/lifestyle.

Whilst right may be on your side, the lack of documentation to prove your case may stand in the way of a judgement in your favour. Questions might also be asked that if the problem was so bad, why didnt you serve a S21 notice? Might it be worth making a without prejudice offer to drop the court action provided that the tenant lets you keep all the deposit? If the tenants agree you will at least get some money rather than risk a court case and costs, or trying to enforce a judgement to get your money should you get a ruling in your favour. I'd say cut your losses.