Once again at the end of last week it was highlighted in news reports that certain types of mould spores are associated with a group of health conditions known as Aspergillosis, leading to respiratory illness which can be particularly problematic for people with asthma or weakened immune systems. What responsibilities do landlords have to tenants whose properties are affected by mould growth (whether or not their health is affected)?
The vast majority of disrepair claims which have been referred to us to deal with involve or include mould growth and damp, and in many cases, the damp has been put down to condensation and so not a question of disrepair. Is it safe for a landlord to come to that conclusion and what do landlords need to be aware of even if they are right?
It is well established that for a property to be in disrepair, it must have fallen from a previous, “good” state of repair. That means that problems which result from a defect in design (such as a lack of insulation, or a lack of DPC) will not normally be “disrepair”. If the tenancy only obliges a landlord to deal with disrepair, then the tenant cannot require the landlord to do work to install insulation or a damp proof course as the tenancy does not oblige the landlord to do so.
If coming to the conclusion that the black mould infestation in a property results from a tenant’s use of the property, perhaps by heating it with a gas or paraffin heater, or (as is very common) drying clothes, a landlord will often regard itself as having no responsibility to do work. However, that can be a dangerous over-simplification and care needs to be taken, to be sure that there is no liability. In particular landlords must:
- Be clear whether the tenancy contains wider obligations in relation to maintenance. The term implied into a tenancy is to “keep in repair” the structure and exterior of the property. Take care if your tenancy uses different wording. In particular, if your repair covenant says that you will keep the property “in good condition” or “fit for habitation” then there may be responsibility for dealing with a condensation damp problem even where there is no “disrepair”.
- Be certain that your inspection has been sufficiently thorough to identify whether there is any disrepair which is causing or contributing to the level of moisture in the property – is there any leak or any rising or penetrating damp? If in doubt, investigate fully.
- Are all extractor fans, trickle vents and other means of ventilation working as they should? Is the heating system fully operational and are there any problems with the insulation? Finding out these things some time later if they have not been fully investigated at the outset can be expensive and good records that these things have been considered and ruled out hugely helpful
- Has the condensation caused a problem which is itself a disrepair, such as rotten window frames or damaged plasterwork? If so, these may well fall within the repairing covenant even if the condensation and mould growth itself did not.
- Even if there is no breach of the tenancy, if the property is such as to be prejudicial to health, the Environmental Protection Act 1990 might impose liability. The local authority may pursue enforcement action under this Act if it considers the state of the property warrants it.
- Likewise liability might arise under s4(4) of the Defective Premises Act 1972, where a landlord has a right to carry out works (even where there may be no obligation to do so). The duty under this section is to take reasonable care to see that the tenant or anyone else who might be affected by the state of the premises is reasonably safe from personal injury. However, this liability is only likely to arise where there is a disrepair.
Many landlords do give tenants advice about how their own use of the property can avoid damp and mould problems. It is good practice to do this as a matter of course and not necessarily just in response to a problem. If you have not done so recently now may be a good time to repeat the advice. The most common contributing factors to household mould growth that we have come across are:
- Drying clothes in the house. It is estimated that a load of washing holds two litres of water – which if discharged into the atmosphere of the home (whether by drying clothes over radiators or via an unvented tumble drier) will make a huge contribution to mould growth. Tenants must be required to ensure that tumble driers are appropriately vented, and washing should not be left to dry on radiators.
- Failure to use extractor fans, shutting trickle vents, blocking or obstructing air vents
- Using gas or paraffin heaters
- Failing to use the heating to keep the property at an appropriate temperature.
Landlords should also provide clear advice about how to clean mould affected areas, and have clear guidelines about when repainting or even re-plastering might be necessary.
The Renting Homes (Wales) Act 2016 will see a new covenant applicable to all occupation agreements (directly enforceable by tenants) which will require a Landlord to ensure that a property is fit for habitation. At the moment, if a property is not fit for habitation a tenant’s only recourse is to hope that the local authority will pursue enforcement action under the Environmental Protection Act (see above) but once the new Act becomes law a tenant will be able to take action him or herself if a property falls below the “fit for habitation” standard. This could include properties affected by mould even where there is no disrepair.
So, it is clearly in the interests of both landlord and tenants for tenants to be aware of what needs to be done to minimise mould growth and to be encouraged to do what they can.
