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Damp- The Legal Position

At this time of year we are often asked about damp and mould growth in properties and who is liable for it. This can be a difficult question to answer and it often depends on precisely what is causing the damp.

Under Section 11(1)(a) Landlord and Tenant Act 1985 (LTA), Landlords have an obligation to “keep in repair the structure and exterior of the dwelling-house”. Due to the duty they owe to Tenants, they must repair the defect to the structure/exterior of the property which is resulting in damp. “To keep” means that there must have been some form of deterioration before the Landlord is liable to repair, therefore the mere existence of damp does not automatically mean that disrepair has occurred. Section 11 is a legally enforceable obligation under which Tenants are entitled to compensation.
The courts have ruled that the Landlord’s obligation is to repair only the structure and exterior of the “dwelling-house”. This means that if the property is part of a larger building, the obligation is only in respect of the dwelling in question and not that of whole building (Campden Hill Towers Ltd v Gardner). However, anything reasonably considered to form part of that dwelling will fall within the obligation e.g. the roof of an entire block where the dwelling is the top floor flat (Douglas-Scott v Scorgie).
The issue of whether the Landlord owes a duty becomes complex when the question of “what is structure and exterior” is raised. In Quick v Taff Ely BC severe damp was caused by large metal framed windows and some rooms in the property were rendered uninhabitable due to the damage caused to furniture, clothing, decorations and bedding; the courts described the living conditions as “appalling”. Nevertheless the Landlord was under no obligation to remedy the damp because his duty was to repair only the structure and exterior (which includes the walls and windows to the property), neither of which was damaged. Likewise, in Post Office v Aquarius Properties Ltd where the water table in the area had risen. Due to a defective joint between the walls and the floor the basement became ankle deep in water, however because the joint was still in the same condition as when the property was constructed there was no evidence of that the water had caused damage to the structure or exterior.

The position was clarified in Southwark LBC v McIntosh where it was stated:

the tenant must establish either that the damp arises from a breach of the covenant [i.e. that the structure or exterior has deteriorated and the Landlord has not provided a remedy] OR that the damp has itself caused damage to the structure or exterior and that this damage, in turn, has caused the damp of which complaint is made.

In Staves v Leeds City Council, damp had caused damage to parts of the plaster on the walls. Therefore, the Landlord was under an obligation to repair. However, this judgment has been subject to some discussion and there are judgments which rule to the contrary i.e. that plaster is decoration and not part of the wall, so the matter is not clear cut. It depends upon whether the plaster is considered to constitute part of the structure or exterior.

Finally, it should be noted that even if the Tenancy Agreement does not expressly burden the Landlord with the obligation to repair, it is an implied term of any agreement under seven years in duration due to Section 11 LTA.

Alternatively, the dampness may be due to the Tenant(s)’ actions e.g. incorrect use or the heating system of drying clothes indoors. This is known as condensation damp which is caused by water vapour in the air condensing when it contacts a cold surface. The Landlord does not have an obligation to remedy this type of damp. This obligation falls upon the Tenant due to their duty to act in a “tenant like manner”.

It should be remembered that under the HHSRS, a part of the Housing Act 2004 a higher burden can be placed upon Landlords to rectify dampness and mould in properties; they can be made to do more than put a house in repair as would be required under Section 11 (LTA). Under HHSRS ratings many properties have been found to score highly in this category of environmental hazards due to issues such as lack of damp proofing or poor ventilation. As a result of such defects, local authority EHOs can serve an improvement notice on Landlords to remedy the problem. Therefore, if a similar scenario arose today as in the case of Quick, the tenant could approach the Council and the landlord would then probably be served notice to remedy the problem. However, this is not disrepair in the strict sense and Tenants are not able to recover compensation from Landlords if such a notice is served. Additionally, Tenants can only seek a remedy under HHSRS by reporting the damp to their local authority.

In general terms, most damp issues are a result of:

  1. penetrating damp,
  2. rising damp, or
  3. condensation damp.

It is necessary to assess the source of damp or mould before any further advice can be given as to who the burden falls upon to correct the defect. If the damp or mould is as a result of something that has been broken or is no longer functioning as it should then it will probably be the landlord’s responsibility. If it is simply as a result of the property being old or not constructed to modern standards then the landlord is probably not liable but the local authority could force him to do the work under the HHSRS.

15 thoughts on “Damp- The Legal Position”

  1. Please note that the responsibility for condensation dampness in one part of a property can be as a result of a building defect in anopther part of the building, e.g windows not opening in the kitchen could result in condensation in bedroom.

  2. Campden Hill Towers Ltd v Gardner led to amendment of of s11 by the HA88 inter alia
    [F1 (1A) If a lease to which this section applies is a lease of a dwelling-house which forms part only of a building, then, subject to subsection (1B), the covenant implied by subsection (1) shall have effect as if—
    the reference in paragraph (a) of that subsection to the dwelling-house included a reference to any part of the building in which the lessor has an estate or interest; and
    any reference in paragraphs (b) and (c) of that subsection to an installation in the dwelling-house included a reference to an installation which, directly or indirectly, serves the dwelling-house and which either—
    (i) forms part of any part of a building in which the lessor has an estate or interest; or
    (ii) is owned by the lessor or under his control.

    further mould is likely to be prejudicial to health and if arising from a defect o mthe structure of the building eg lack of dry lining may be a stszautory nuisance the responsibility of the landlord

    1. This is true but the amendment ultimately confirmed the position in Campden Hill. If a landlord does not have control of something and it is not an installation directly serving the dwelling house then he is unlikely to be liable for it. Therefore leaks into a property which result from failures of a superior landlord or from another party in the same building are unlikely to be the responsibility of the immediate landlord under s11 unless the head landlord’s failure has made the immediate landlord’s own property fall into disrepair.

      There may be remedies under statutory nuisance and the HHSRS.

  3. Yes, but 11(1A) potentially/usually covers the position such that when you say “This means that if the property is part of a larger building, the obligation is only in respect of the dwelling in question and not that of whole building (Campden Hill Towers Ltd v Gardner)” that is very often not true. Campden Hill Towers would only hold where there was an intermediate lease, and an intermediate lease restricted to less than the whole (or affected parts) of the building at that.

    Don’t get me started on leaks from another party/tenant/lessee. Nuisance and adoption of nuisance is an entertaining issue in these circumstances. Does the LL have an explicit or implied right of access to carry out repairs? Mint v Good, etc.. I’ve won a couple of claims on that.

  4. It appears that the responsibility for the enforcement of action under the HHSRS lies primarily with the opinion of individual EHO’s. My question is “what factors do EHO’s take into account is reaching their “opinion”. What tests, if any, do or should they apply to determine whether the tenant or landlord is responsible for the cause and consequence of condensation?

    1. It is not simply a matter of “opinion”. There is a structure and a set of calculations that the EHO must go through and a failure to follow these renders the decision liable to appeal. Ultimately most EHOs take the view (fairly accurately) that damp and mould growth have as their root cause cold property or poor ventilation, irrespective of whether the tenant has themselves acted in a way which has made things worse. They will therefore seek improvements to reduce the problem by increasing natural ventilation and reducing cold spots if they deem the situation to be serious enough.

  5. what if damp has been reported and investigated as both rising damp and penetrating damp causing mould throughout house due to poor pointing and poor ability to ventilate, but the landlord has done nothing and the tenants are in a fixed term tenancy without a break clause. If the landlord refuses to repair areas which cause damp and tenants are asthmatic and expecting a new baby would this be grounds to break tenancy legally or would environmental health need to be called in to verify what independent surveyor has already reported ?

    1. Damp and mould growth is one of the hazards that an environmental health officer ( EHO) will assess. If the property is damp through a design defect and not because of the landlord’s failure to repair, then you could consider requesting an EHO inspection as they have powers ( and obligations) to enforce against hazards.

  6. Would a previous leak, e.g. bathroom sink subsequently fixed, render the LL at fault even if tenant wasn’t ventilating properly and drying clothes indoors?

    If found at fault for damp, what compensation can a LL expect to pay to a tenant?

  7. Pingback: My Incompetent Tenants Painted Over Mould

  8. Damp turned into mould has occurred in our bedroom on the ground floor of appartments. It is on the skirting boards, upto an 1 1/2 above on the paint work and some cases in the carpet grooves.We reported our bathroom window not opening 4th Febuary 2013 and a leaking pipe under kitchen sink (which their plumber says is condensation on the pipes) 26th January which was covered in instillation tape.
    We are still using the small vent in the bathroom instead of window. Water is still dripping from pipes and we are emptying a container once every two days but black has appeared on the lino infront of the sink.
    Could these be the cause of damp in our bedroom? If so who’s responsible?
    I have reported it to my landlord today with urgency as my 3month old daughter sleeps in our room. Do I have to wait for it to be inspected before removing it myself, does someone else remove it and how long until they have to fix the problem.
    Please reply, Many thanks!!!

  9. I am a Student Tennant and my rented house suffers from mold and dampness, after informing our agency we were told that it was because of us. However, many walls within the property have been painted over where the mold grows, and mold grows in the bathroom regardless of how ventilated we try keeping it. We also have leakages in the bathroom from the shower and the sink, drafts coming under the skirting boards in our bedrooms and there are no skirting boards in the kitchen along side a hole in the floor and slugs keep getting in.

    Also a small under note question. The boiler that doesn’t work is gas powered and we have only just had a Carbon Monoxide detector installed within the property (boiler has been in for 3+ years) were do I go to sort the legal side of that out?

    Would be thankful for help!

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