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Condensation and Mould – it is time to litigate!

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There has been a lot said about condensation and mould following the tragic case of Awaab Ishak. I am not intending to comment on that particular case here, apart from this – how this can have happened in the UK, in 2020? In fact, as we will see, this is not a recent problem.

Let’s go back to 1986 and the case of Quick v Taff Ely Borough Council [1986] Q.B. 809. The court of Appeal decided, reluctantly, that work needed to remedy condensation was not a ‘repair’ for the purposes of the landlords’ duties under s11 Landlord and Tenant Act 1985. Dillon LJ explained the problem –

‘There has for years been very severe condensation in the house, which has rendered the living conditions of the Plaintiff and his family appalling…the condensation came about from the warm air of the environment in the rooms reaching the cold surfaces of the building…I would conclude that, by modern standards the house was in winter – when of course the condensation was at its worst – virtually unfit for human habitation’

The appeal judges found that, in the absence of identifiable disrepair, the case could not succeed. This was a big blow to those of us of a certain age (!) who were running disrepair cases back then. But the Court made some observations that are often overlooked and very relevant today.

Dillon LJ continued –

‘When I read the papers, I was surprised to see that the plaintiff had not based his claim on an allegation that at all material times the house let to him by the defendant council had not been fit for human habitation…I was even more surprised to be told by counsel…’

 

What counsel told him was that was in fact, no enforceable cause of action for tenants in relation to fitness. There was a useless duty in relation to properties let at a low rent but nothing else. So, 36 years ago the Court of Appeal acknowledged that condensation and mould were capable of rendering a home unfit for human habitation. But as a matter of law, there was nothing a tenant could do, by way of a civil claim.

Fast forward to March 2020 – yes 34 years later.  This was when, after tireless work from housing lawyers and politicians*, the Homes (Fitness for Habitation) Act 2018 was rolled out. This created a new duty, by way of a new s9A Landlord and Tenant Act 1985, on landlords to ensure that a home –

 (a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and

(b) will remain fit for human habitation during the term of the lease.

A new s10 sets out defects that can make a home unfit. One such defect is a ‘prescribed hazard’ in England (see below for Wales**). These 29 hazards were created by the Housing Health and Safety Rating System (HHSRS) via the Housing Act 2004. They were standards to be used by local housing authorities in relation to action that they should take but were not directly enforceable by tenants. Until now.

 

Hazard number 1 is Damp and Mould. Alongside the HHSRS was an Operating Guidance which leaves us in no doubt about the dangers of mould –

 

“Many moulds and fungi (including timber attacking fungi) can be allergenic. The spores can also be carcinogenic, toxic and cause infections; the potential health effect varying with species. Some fungi, particularly when in very high concentrations, can also colonise the airways of susceptible individuals, particularly asthmatics. Toxins from some moulds (mycotoxins) can cause nausea and diarrhoea, can suppress the immune system, and have been implicated in cancers. Although uncommon, these are serious if they occur” 

The guidance goes on to refer to the risks to mental health.

Mould is nasty. It is a danger to health. Knowledge of the danger is nothing new. What is new, is that there is now a legal remedy. Failure to take action to resolve mould, whether caused by condensation or other defect, can be a breach of the landlords’ duties under s9A.

It is frustrating therefore that there have been so few cases. None have reached the higher courts to my knowledge. This was partly due to the pandemic.  The 2018 Act came into effect just as we were going into the first lockdown. But I also think that there has been a reluctance to pursue litigation in relation to these ‘new duties’. This article is an unashamed call for this to change. The rights are new but as we have seen the problem is far from new. Knowledge of the dangers of mould is not new. The duties are clearly set out s9A and s10. This is an urgent matter. All of the building blocks are in place. I think the time has come for fitness for human habitation to be a primary driver in housing conditions cases.

www.stevecornforth.com 

*Notably, Giles Peaker (aka Housing law reports and analysis – Nearly Legal: Housing Law News and Comment) and Karen Buck MP

**Wales has her own housing standards, and the Renting Homes (Wales) Act 2016 is due to come into force in December 2022.

 ps I am presenting a webinar on 16th December 2022 developing these thoughts further. Contact me on stevecornforthconsutancy@gmail.com for details

 

Quick v Taff-Ely Borough Council | [1985] 3 WLR 981

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