New Damp and Mould Guidance

Date Published 15 September 2023

New guidance for property professionals has been published by the Department for Levelling Up, Housing and Communities (DLUHC), which includes unlimited fines for those who do not comply. The government wants to put the emphasis firmly on private Landlords to take responsibility for issues of damp and mould in their rental properties. This puts private Landlords on par with housing associations and councils in facing unlimited penalties if they ignore damp and mould problems.

DLUHC has stated that damp and mould are not a result of lifestyle choices and that tenants should not be to blame. Instead, they are putting the responsibility on Landlords and managing agents to address the problem whether that be structural issues or poor ventilation.

There are multiple legal standards that private rental properties must meet with damp and mould in rented homes. Failure to adhere to any of these may place the Landlord or managing agent at risk of prosecution.

The first one is to be free from category 1 hazards as assessed by the Housing Health and Safety Rating System which comes from the Housing Act of 2004. This means that an occupier or a visitor to the property may require some form of medical attention over the course of a year. Mould and dampness can create respiratory infections.

Another legal standard is to not contain conditions prejudicial to health from the Environmental Protection Act 1990. Tenants and local councils have 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.

Thirdly the property has to be safe, healthy and fit for human habitation. This would be from the Fitness for Human Habitation Act in 2018 which the property is not suitable for occupation in that condition. The current occupier may be taken into consideration when determining whether the property is suitable.

Finally, all privately rented homes must meet minimum energy efficiency standards from regulations in 2015. The minimum EPC rating has to be band E and although the regulations do not make reference to damp and mould, but an energy efficient property is less likely to be affected.

These standards may be enforced by different methods including improvement notices, legal notices preventing use of all or part of the property or council carrying out works and charging the Landlord. There is also prosecution and potentially unlimited fines for failure to comply through the Magistrates Court.