Legal viewpoint on LLs repairing obligation

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With thanks to Painsmiths solicitors


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At this time of year we are often asked about damp and mould growth in properties and who is liable for it. This can be a difficult question to answer and it often depends on precisely what is causing the damp.


Under Section 11(1)(a) Landlord and Tenant Act 1985 (LTA), Landlords have an obligation to “keep in repair the structure and exterior of the dwelling-house”. Due to the duty they owe to Tenants, they must repair the defect to the structure/exterior of the property which is resulting in damp. “To keep” means that there must have been some form of deterioration before the Landlord is liable to repair, therefore the mere existence of damp does not automatically mean that disrepair has occurred. Section 11 is a legally enforceable obligation under which Tenants are entitled to compensation.


The courts have ruled that the Landlord’s obligation is to repair only the structure and exterior of the “dwelling-house”. This means that if the property is part of a larger building, the obligation is only in respect of the dwelling in question and not that of whole building (Campden Hill Towers Ltd v Gardner). However, anything reasonably considered to form part of that dwelling will fall within the obligation e.g. the roof of an entire block where the dwelling is the top floor flat (Douglas-Scott v Scorgie).


The issue of whether the Landlord owes a duty becomes complex when the question of “what is structure and exterior” is raised. In Quick v Taff Ely BC severe damp was caused by large metal framed windows and some rooms in the property were rendered uninhabitable due to the damage caused to furniture, clothing, decorations and bedding; the courts described the living conditions as “appalling”.

Nevertheless the Landlord was under no obligation to remedy the damp because his duty was to repair only the structure and exterior (which includes the walls and windows to the property), neither of which was damaged. Likewise, in Post Office v Aquarius Properties Ltd where the water table in the area had risen. Due to a defective joint between the walls and the floor the basement became ankle deep in water, however because the joint was still in the same condition as when the property was constructed there was no evidence of that the water had caused damage to the structure or exterior.


The position was clarified in Southwark LBC v McIntosh where it was stated:

the tenant must establish either that the damp arises from a breach of the covenant [i.e. that the structure or exterior has deteriorated and the Landlord has not provided a remedy] OR that the damp has itself caused damage to the structure or exterior and that this damage, in turn, has caused the damp of which complaint is made.

In Staves v Leeds City Council, damp had caused damage to parts of the plaster on the walls. Therefore, the Landlord was under an obligation to repair. However, this judgment has been subject to some discussion and there are judgments which rule to the contrary i.e. that plaster is decoration and not part of the wall, so the matter is not clear cut. It depends upon whether the plaster is considered to constitute part of the structure or exterior.


Finally, it should be noted that even if the Tenancy Agreement does not expressly burden the Landlord with the obligation to repair, it is an implied term of any agreement under seven years in duration due to Section 11 LTA.


Alternatively, the dampness may be due to the Tenant(s)’ actions e.g. incorrect use or the heating system of drying clothes indoors. This is known as condensation damp which is caused by water vapour in the air condensing when it contacts a cold surface. The Landlord does not have an obligation to remedy this type of damp. This obligation falls upon the Tenant due to their duty to act in a “tenant like manner”.


It should be remembered that under the HHSRS, a part of the Housing Act 2004 a higher burden can be placed upon Landlords to rectify dampness and mould in properties; they can be made to do more than put a house in repair as would be required under Section 11 (LTA). Under HHSRS ratings many properties have been found to score highly in this category of environmental hazards due to issues such as lack of damp proofing or poor ventilation. As a result of such defects, local authority EHOs can serve an improvement notice on Landlords to remedy the problem. Therefore, if a similar scenario arose today as in the case of Quick, the tenant could approach the Council and the landlord would then probably be served notice to remedy the problem. However, this is not disrepair in the strict sense and Tenants are not able to recover compensation from Landlords if such a notice is served. Additionally, Tenants can only seek a remedy under HHSRS by reporting the damp to their local authority.


In general terms, most damp issues are a result of:

<LI style="MARGIN-LEFT: 1em; LINE-HEIGHT: 1.6">penetrating damp, <LI style="MARGIN-LEFT: 1em; LINE-HEIGHT: 1.6">rising damp, or
• condensation damp.

It is necessary to assess the source of damp or mould before any further advice can be given as to who the burden falls upon to correct the defect. If the damp or mould is as a result of something that has been broken or is no longer functioning as it should then it will probably be the landlord's responsibility. If it is simply as a result of the property being old or not constructed to modern standards then the landlord is probably not liable but the local authority could force him to do the work under the HHSRS.

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