What is the mould issue and why it exists
Redecoration and other associated remedial work required as a result of a mould issue is a common claim in deposit disputes. Even where a landlord can show, for example, that a mould problem has gotten worse over the course of a tenancy, evidence of a mould problem per se does not, necessarily, infer any liability on the part of the tenant.
Whilst condensation and mould can be caused by a tenant’s lifestyle (for example, improper indoor tumble dryer use, drying clothes indoors on radiators and not opening windows), it can also be a sign of a structural issue that would fall under a landlord’s normal repairing obligations (for example, lack of trickle air vents in double glazing units, insufficient insulation in north-facing elevations, inadequate available ventilation in kitchens and bathrooms). Consequently, when assessing claims for damage caused by mould or mildew, adjudicators will, commonly, look for an independent report from a damp specialist (or for more minor issues, a contractor) that confirms the source and cause of the problem and also outlines any necessary remedial actions to be taken.
Mould problem in flat or house
As the burden of proof, in law, falls on the landlord or agent to show that they are entitled to the money claimed from the deposit, it is for the landlord or agent to provide such a report or opinion. Whilst costs for expert opinion may not always be recoverable in a low value/standard deposit dispute if the adjudicator deems that a specialist report was necessary given the severity/nature of the mould issue – and depending on the specific terms of the tenancy agreement – adjudicators can award for the costs of a report which were directly caused by a tenant’s negligence/poor upkeep of the property. From experience, many claims involving mould will turn on whether the problem is shown in the evidence to be a result of a tenant’s failure to adequately heat and ventilate a property, or whether the issue arose as a result of any structural defect or deficiency.
In addition, many disputes arise when a tenant allegedly fails to inform a landlord/agent about a mould or damp issue that has either developed during the course of the tenancy or has gotten significantly worse. Tenants are obliged under case law and – usually – under the tenancy agreement to make the landlord or agent aware of any new issues or issues that have gotten significantly worse over a short period.
If a tenant fails to do so, contrary to their legal obligations, then a landlord may be able to claim against the deposit for the exacerbation (or acceleration) of the mould issue. Again, however, it will be for the landlord to show, on the balance of probabilities, that the failure to report the issue in a timely manner caused the expense/costs and in such cases, an opinion from a contractor (or, in more serious cases, a report from a damp specialist) could be crucial.
Where a report or opinion from a contractor has not been provided and where a check-in inventory report shows issues of damp or mould at the start of a tenancy, a landlord or agent’s prospects of recovering monies for a mould issue would be limited.
John Bolton, adjudicator
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