There are a number of legal standards that private and social landlords must adhere to. A lack of compliance puts tenants at risk and places the landlord at risk of prosecution.
Legal standards for housing providers
There are 5 main legal standards that relate to damp and mould in rented homes.
All homes must be free from hazards at the most dangerous ‘category 1’ level
The Housing Act 2004 states that properties must be free from hazards at the most dangerous ‘category 1’ level, as assessed using the Housing Health and Safety Rating System (HHSRS), a risk-based evaluation tool. This includes mould and all types of dampness. See below ‘Understanding damp and mould’.
Generally, a ‘category 1’ hazard means that an occupier of or visitor to the property may require some form of medical attention over the course of a year. Local councils also have a power to take action when they identify hazards at the ‘category 2’ level.
All homes must not contain conditions that are prejudicial to health
The Environmental Protection Act 1990 gives tenants and local councils powers to take legal action where homes contain a ‘statutory nuisance’, which includes where they are in such a state as to be prejudicial to health.
To be a statutory nuisance, the damp and mould must be harmful to the health of the tenant or a nuisance.
Homes must be fit to live in
New provisions in the Landlord and Tenant Act 1985 added by the Homes (Fitness for Human Habitation) Act 2018 require that properties are free of hazards, including damp and mould, which are so serious that the dwelling is not reasonably suitable for occupation in that condition. The current occupier may be taken into consideration when determining whether the property is suitable.
A home that is fit for human habitation is safe and healthy, which would mean free from damp and mould that could cause significant harm.
Tenants may wish to take action if their property is unfit for human habitation or the landlord has failed to keep it in repair, under defined circumstances, under Section 9A and Section 11 of the Landlord and Tenant Act 1985. While there is currently no legal requirement to undertake remedial work within a specific period of time, landlords should nonetheless respond to complaints about repairs promptly.
Social housing specifically must meet the Decent Homes Standard (DHS)
To meet the Decent Homes Standard, social housing must be free from dangerous ‘category 1’ hazards. But the DHS also states that social housing must be in a reasonable state of repair and provide a reasonable degree of thermal comfort. Either disrepair or inadequate thermal comfort, or both, may result in damp and mould. Where the Regulator of Social Housing (RSH) determines a provider has breached standards, it has a range of legal powers it can use, including enforcement powers.
We will legislate to introduce a Decent Homes Standard in the private rented sector at the earliest opportunity.
Privately rented homes must meet minimum energy efficiency standards
The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 require that privately rented homes must meet the Minimum Level of Energy Efficiency standard of Energy Performance Certificate (EPC) band E (unless exempt). The regulations do not make reference to damp and mould, but an energy efficient property is less likely to be affected by condensation, one cause of damp and mould, provided it is adequately ventilated.[footnote 2] [footnote 50] The government has committed to consult on the energy efficiency of social housing.
Complying with the standards
As a first step, landlords of all types of tenure must ensure that their homes have all the measures in place to ensure that damp and mould have been minimised. Landlords should regularly inspect their properties, remedy deficiencies promptly and ensure that they have a regular programme of maintenance and management.
Landlords have a right to enter their properties, with reasonable notice, but only in specific circumstances which may include:
- to inspect the conditions of the premises
- to perform repairs
- access to provide services
If a tenant reports damp and mould, landlords should establish the source of the damp, whether there is any defect to the property that is causing it, and then carry out the appropriate remedial work. While there is currently no specific timeframe within which remedial work to address damp and mould must be undertaken, landlords should always respond promptly and address this issue as a matter of urgency when there is significant damp and mould and/or when there is a significant concern for tenant health. See ‘Identifying and addressing damp and mould in your property’ and ‘Reducing the risk of damp and mould developing’ for further guidance.
If all possible remedial action has been taken, landlords may be able to appeal or defend formal action taken under the legislation set out above, even if damp and mould persists.
Note: works to the heating and ventilation systems and replacement of windows are all controlled work. When undertaking controlled work, there is a legal duty to comply with the Building Regulations. If the work requires approval but landlords would rather not apply themselves, they can hire a tradesperson registered with a competent person scheme instead. Landlords or agents undertaking any work to remedy damp and mould should check the guidance on Building Regulations Approval. Landlords or agents may also wish to speak to their local council building
