Rising Damp: A consideration of landlord's obligations

Although the law on this subject has been settled for over a decade, there still remains a misunderstanding of the extent of a landlord’s obligations. Claims are still being brought following mould exposure without understanding the limits of the statutes.

Mould is a fungus which can develop in buildings where there are increased moisture levels and reduced air flow. The presence of mould can cause both health problems and property damage. This, in turn, can result in claims brought by tenants.  

Repairing Obligations

Repairing terms were first imposed on the landlord by S.32 (1) of the Housing Act 1961. The same terms are now implied into tenancy agreements shorter than seven years by S.11 of the Landlord and Tenant Act 1985. This says that the Lessor must:

(a)    keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes).

(b)    keep in repair and proper working order the installations in the dwelling house for the supply of water, gas and electricity and for sanitisation.

(c)    keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

The scope of the obligation under the original S.32 (1) of the Housing Act 1961 was considered in the Court of Appeal case of Quick v Taff Ely Borough Council [1986]. Condensation arose in the property due to the warm air in the rooms reaching the cold surfaces of the building.

The court considered whether it was necessary for the landlord to replace the window frames, lintels and insert a new radiator system to alleviate the problem.
It was held that the condensation issues were a result of internal condensation caused by the inhabitants living conditions, rather than defective premises. The landlord did not have an obligation to remedy this type of damp. This is likely to reflect what would be found under S.11 of the 1985 Act.

The position was clarified in Southwark LBC v McIntosh [2001] where it was held that ‘the Landlord is obliged only to restore the house to its previous good condition. He does not have to make it a better house than it originally was’.

Establishing whether a landlord is responsible can mean determining the type of damp that has occurred. Damp can take three forms: penetrating, rising and condensation damp.

Penetrating damp is generally caused by a structural defect such as a leaking roof, leaking gutter/drain or cracked wall. Rising damp occurs when moisture travels up from the ground through the masonry.

Penetrating and rising damp are usually the result of a defect within either the exterior or structure of the premises. In most instances, they will be the landlord’s responsibility, if a defect is proven.

Condensation damp will generally arise whether there is a lack of ventilation or poor heating and insulation, or a combination of these. It can be caused by tenants failing to adequately aerate the property.

Relevant Defect

The obligation to repair is reinforced by S.4 of the Defective Premises Act 1973, which says:

1.    Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.

At paragraph 3 of the act, the term ‘relevant defect’ was given meaning…

3.    In this section ‘relevant defect’ means a defect in the state of the premises existing at or after the material time and arising from, or continuing because of, an act or omission by the landlord which constitutes or would he had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises…

The term ‘relevant defect’ was considered in the case of Lee v Leeds City Council. The interior of Mrs Lee’s property suffered from condensation, mould and damp. A chartered civil engineer concluded that the property was in such a state that it was prejudicial to the health of the occupants. Mrs Lee issued proceedings to compel the Council to remedy the ‘defects’.

She relied on the terms of her tenancy agreement, S.11 of the 1985 Act and s.4 of the Defective Premises Act 1972. The Council argued that they were not liable to remedy interior damp, condensation and mould that was not caused by the structure and exterior of the property. In this case the judge held that the City Council had no liability for condensation, mildew or mould growth as they were not caused by a ‘relevant defect’.

In Ratcliffe v Sandwell Metropolitan Borough Council the claimant’s children suffered from asthma allegedly aggravated by the state of the premises. The property suffered from condensation and associated mould growth. The court considered whether the landlord has ‘an obligation to rectify design faults in the building which are the cause of the condensation found in the property’. The judge held that the landlord did not have an obligation to repair design faults under S.11 of the 1985 Act.

The Ratcliffe case was relevant to a series of claims recently defended by Keoghs. The claimants alleged injury from mould exposure. They claimed that the housing had been built near a marsh and on boggy ground. This caused humid conditions in the property, leading to condensation that had not been adequately considered when the houses were designed. Ultimately, the claims all failed. The alleged design flaws did not qualify as a relevant defect upon which the claims could be brought.

Whilst every case will turn upon its facts, it is clear that the statutory definition of defect will remain a crucial consideration.