Ask TDS: "Mould during tenancy: Who is responsible?"

The Tenancy Deposit Scheme (TDS) is a government approved scheme for the protection of tenancy deposits; we offer both insured and custodial protection. We also provide fair adjudication for disputes that arise over the tenancy deposits that we protect. This article has been written in response to a tenant’s query: “Mould during tenancy: Who is responsible?”

Mould is an unfortunate problem that many landlords and tenants will find themselves dealing with over the years. We previously wrote an article on the methods you can use to both remove and prevent mould which you can find here.

 I told the landlord there was mould and he didn’t do anything, why is he now claiming from my deposit to fix it?

Tenants have a duty of care to promptly alert landlords to any areas of concern that may need repairing or replacing such as when mould starts to appear. But who is responsible for the mould during the tenancy?

The typical response we usually see is that landlords are responsible when there is a fault with the building that has caused the mould – for example a leaky pipe. Tenants become responsible if the mould develops during their tenancy, i.e. was not present at the beginning of the tenancy, and was not as the result of a fault with the property, i.e. not caused by a water leak. *This is not always the case, and every case should be considered based on the evidence provided. TDS articles are written as a guide, not as an absolute. You should seek legal advice if you wish to know the likelihood of result in your individual case.

Mould often occurs due to a lack of ventilation and/or circulation of air. The release of excess moisture – from drying clothes, for example – and tightly sealed windows and doors can be an ideal environment for mould to develop. However, it can also occur due to a building defect, and it can be challenging for an adjudicator to make a decision if there is not sufficient evidence to support either party’s assertion.

 I withheld rent because the mould made me sick – now the landlord is trying to claim that from my deposit!

Unilaterally withholding rent is not recommended, and TDS is unable to consider such counter-claims. If you feel that the landlord has breached their obligations under the tenancy agreement, you should seek legal advice and may need to raise an action in court. TDS will not consider any ‘set-off’ issues such as this – rather, the adjudicator is looking to see if the tenant has breached their obligations under the tenancy agreement, and if the landlord has suffered a loss due to that breach.

If you are still in the property, rather than withholding some or all of the rent you could contact your local council and ask them to inspect the property. Here is a helpful guide on how they classify the health and safety standards for rented homes.

If the tenancy has ended and you are considering raising a dispute against your landlord for the return of your deposit: please remember that deposit schemes cannot consider tenant counter claims. If you want to claim against your landlord, or reduce the arrears debt by considering the state of the property you will need to seek legal advice and consider going to court.

If mould appears during a tenancy it will be hard for tenants to prove the blame lies with the landlord. Should the tenancy end while the mould remains, the tenants may find the landlord claiming money from their deposit to rectify the damage. In cases where tenants have withheld rent, they should be aware that this leaves them open to rent arrears claims.

Interested in finding out more? Read this interesting report compiled by Kate Faulkner, commissioned by the TDS Charitable Foundation.

Posted by Zoe Knighton on 30 June 2017

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