Getting your house in order

There cannot be many people who were not moved after hearing about the death of Awaab Ishak, the two-year old boy from Rochdale who had ‘environmental mould exposure’ listed as one of his causes of death. The photographs showing the state and condition of the flat Awaab had been living in made for tough viewing. The coroner’s verdict was damming, and led to a formal report being sent to both the Secretary of State for Health and to the Secretary of State for Levelling Up, Housing and Communities, requesting changes to be made to, among other things, the Decent Homes Standard and the Housing Health and Safety Rating System (HHSRS) to better reflect the harm that damp and mould in properties can cause. 

The state of rented housing

Awaab’s parents rented their home from a registered provider of social housing. Anyone working in the field of social housing will know that there is a perfect storm raging at present: an ever-ageing housing stock, a huge pressure to accommodate people plus a never-ending tide of disrepair claims arriving on their desks each day, many of which will involve damp and mould. It is difficult to see where the solution lies, even in light of Awaab’s case.  

It could be easy to assume that housing blighted by damp and mould is just a problem in the social housing sector. But as the coroner’s report to the various government ministers made clear: “The court heard evidence that the impact on health from damp and mould is a widespread national issue. Of particular ·importance is the fact this is not simply a social housing issue. The same concerns apply as much to the private landlords, where evidence suggests the problem is worse.” Put simply, it is as important for all landlords who rent properties out – whether private or social – to be alert to the issues highlighted in the case. It could just as easily be a private sector landlord finding themselves and their practices examined by a coroner.  

The standards required in private lettings

The standards required across any residential letting, whether public or private, are broadly similar. However, social housing landlords also have to contend with the Decent Homes Standard, which places minimum standards on social housing – although private landlords should take note that the plan is for a similar Standard to be applied to the private sector, too. The requirements are as follows:

1. The Housing Health and Safety Rating System (HHSRS) is a detailed regime introduced by the Housing Act 2004 where various potential risks and hazards are assessed and given a ‘hazard score’ by the local authority. Damp and mould growth are specifically listed as presenting a potential hazard for occupants, alongside areas such as overcrowding and fire risk. Local authorities have a range of robust enforcement powers available to them if hazards are found.

2. Under section 11 of the Landlord and Tenant Act 1985, there will be implied into most residential tenancies a requirement on a landlord to:

• keep the structure and exterior (including windows, external pipes and gutters) in repair,
• keep in repair and proper working order the installations that supply water, gas and electricity and sanitation and
• keep in repair and proper working order the installations for space and water heating.

Landlords may often find section 11 being relied upon in disrepair claims or counterclaims and they can quickly become contentious. There can be arguments raised about whether proper notification of disrepair has been received, but the bigger source of contention is usually regarding whether there has actually been ‘disrepair’ in the first place for which the landlord is liable. Landlords will often argue that any problems are caused by the tenant’s actions and their failure to use the property in a tenant-like manner, rather than disrepair. All these lines of argument feature heavily in cases involving damp and mould, where landlords will often argue that problems are caused by tenants failing to heat and ventilate properties, or by defects in the fundamental fabric of the building, rather than any breach by the landlord of the section 11 provisions. 

3. The Homes (Fitness for Human Habitation) Act 2018 amended the 1985 Act and updated an outdated provision regarding fitness for human habitation. It is now an implied term in most assured shorthold tenancies that the property will be fit for habitation at the start and remain so throughout, arguably making it easier for tenants to claim against their landlords in the event problems are found in a property. ‘Freedom from damp’ is expressly listed as one of the requirements for a dwelling to be deemed ‘fit for human habitation.’ 

As an aside, one of the criticisms of assured shorthold tenancies (ASTs) was that tenants who complain about repair issues could simply be served with a section 21 notice and then evicted by the landlord. The Deregulation Act 2015 in theory attempted to stop so-called ‘retaliatory evictions’ but it is questionable if the Act has been effective. 

What should landlords be doing? 

As referred to above, repair issues will often come to light when the letting relationship has broken down and either the landlord is seeking possession, or the tenant is pursuing a claim or counterclaim. Reviewing the repair and maintenance history with the benefit of hindsight can be a difficult experience for landlords. 

Therefore, the key for landlords is to be proactive in their approach.  

1. Be aware of your legal responsibilities. Remember that tenancy terms may go beyond the legislation in terms of repairs and maintenance, so check the tenancy agreement, too. 

2. If there has been a long-standing tenant in occupation who pre-dates the coming into force on 20 March 2019 of the 2018 Act, or if a survey has not been carried out since that legislation came into being, it may be sensible to instruct a specialist surveyor to carry out a survey of the property. Any remedial works identified can then be addressed. Note the emphasis on ‘specialist’ surveyor – it needs to be a surveyor who knows their way around the housing legislation, rather than being a general building surveyor. 

3. Some landlords try to rely on a failure by a tenant to permit access as a reason for not carrying out maintenance or repairs. In some cases, a clear refusal by a tenant to permit access can be a defence to a landlord facing a claim, but in other cases (depending upon circumstances) the landlord may be required to be proactive in gaining entry, seeking the assistance of the court if faced with persistent refusal of access. In both the 1985 and 2018 Acts there are implied covenants which require a tenant to provide a landlord with access to the property on reasonable notice, but bolstering the implied right with an express right in the tenancy agreement can be useful. 

4. As stated above, proactivity is the name of the game and landlords should therefore be carrying out regular inspections, rather than just wait for problems to be reported. Again, if faced with refusal by the tenant, the landlord should be looking to enforce access. Tenants who refuse access may have something to hide – and in most cases, landlords need to know what that is. 

5. Ensure that anyone who goes into the property on the landlord’s behalf has their eyes and ears open and takes a wholesale view of the property, rather than just focusing on the particular task they have been asked to carry out. An electrician may be contracted to fix a faulty light - but if they notice mould while they are in the property, or are told in passing that there is a problem with the gas boiler, it is important this is passed back to the landlord. If the contractor can go further and ask in conversation if there are any other issues with the property, a negative response can be recorded. That may be very useful to the landlord if faced with a claim in due course. 

6. Time is usually of the essence if a problem is reported. Boilers do break down, basins can leak etc. The key is to ensure things are fixed within a reasonable time frame – and ideally as swiftly as possible. 

7. Likewise, landlords should act quickly if they do become aware that tenants are failing to use the property in a tenant-like manner. If a previously sound property suddenly starts to be filled with mould, it may suggest a lifestyle issue is to blame and significant damage may be caused if left and/or the tenant may try to blame the landlord. As energy costs escalate, landlords may find more and more tenants cutting back on heating properties, and that could lead to increased dampness, condensation and mould. 

A final point. Any landlords who have taken a rather more relaxed attitude to their responsibilities so far may have to rethink that approach going forward. Significant reform to the private rented sector is imminent and those changes are likely, through various means, to drive up the standard of rented housing and place an even greater focus on landlords ensuring rental properties are suitable. Landlords need to think carefully about the nature of any new properties they are contemplating buying, as well as taking time now to consider the state and condition of any existing portfolio. Now really is the time for landlords to get their houses in order.