Damp and Mould in Rented Property — Landlord vs Tenant Responsibility

The Legal Context: Post-Awaab Ishak

In November 2022, two-year-old Awaab Ishak died in Rochdale from a respiratory condition caused by prolonged exposure to black mould in a social housing property. The coroner’s inquest, which concluded in 2023, found that the landlord failed to address repeated complaints about the damp conditions.

The case prompted significant regulatory change. The Social Housing (Regulation) Act 2023 introduced “Awaab’s Law”, which requires social landlords to investigate and fix reported damp and mould within strict statutory timeframes. Similar obligations are expected to extend to the private rented sector.

Types of Damp and Their Causes

Understanding the cause is essential to determining responsibility:

Rising damp: Moisture from the ground rising up through masonry. Almost always a structural defect. Landlord’s responsibility under Section 11 of the Landlord and Tenant Act 1985.

Penetrating damp: Water entering from outside through damaged roofing, walls, windows, or guttering. Landlord’s responsibility — structural or exterior defect.

Condensation dould: Warm moist air condenses on cold surfaces. Can result from either inadequate ventilation/insulation (structural — landlord’s responsibility) or tenant behaviour (excessive moisture generation without ventilation — potentially tenant’s responsibility).

The Condensation/Lifestyle Debate

Condensation mould is the most contested type. Landlords historically attributed it to tenant behaviour (drying clothes indoors, failing to ventilate, not heating adequately). Tenants counter that poor insulation, cold wall surfaces, and inadequate ventilation are structural issues.

The law has moved firmly towards treating condensation damp as primarily a structural and ventilation issue. HHSRS (Housing Health and Safety Rating System) assessments focus on whether the property is “free from excess moisture”, which is an objective assessment not dependent on tenant behaviour.

Critically, HMRC’s own guidance now states that properties should be warm, dry, and free from damp regardless of tenant lifestyle.

HHSRS Assessment

Local authorities assess damp under the HHSRS. Damp can constitute a Category 1 (most serious) or Category 2 hazard depending on severity. A Category 1 hazard triggers a duty on the council to act.

What Landlords Must Do

1. Respond promptly to any written complaint about damp or mould

2. Investigate the root cause — do not simply paint over mould without identifying and addressing the underlying damp

3. Carry out necessary repairs within a reasonable timeframe (as a guide, significant damp should be treated as urgent: within weeks, not months)

4. Consider improvements if the property has poor insulation or ventilation that contributes to condensation

Tenant Obligations

Tenants have a duty to behave in a “tenant-like manner” and can contribute to damp by:

• Not ventilating the property (especially bathrooms and kitchens)
• Drying large quantities of clothes indoors without ventilation
• Blocking vents or extractor fans

However, expecting tenants to heat and ventilate an inadequately insulated property to prevent mould is increasingly considered unreasonable by courts and adjudicators.

EPC Ratings and Damp

Poor insulation (a major contributor to cold wall surfaces and condensation) is reflected in low EPC ratings. Properties with EPC ratings of E, F, or G are more likely to have condensation problems. Landlords with low-rated properties should consider insulation improvements both to comply with MEES obligations and to reduce damp-related maintenance costs.

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