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What can we do about black mould on the walls?

Damp and mouldHere is a question to the blog clinic from Beth who is a tenant:

My husband and I rent a flat which is on the top floor of a four storey building.

The roof has been leaking ever since we moved in, which was in July this year. The wallpaper in the corner of our lounge has peeled off and there is black mould on the wall behind it.

My husband suffers from asthma and has breathing difficulties if he is in the room for long periods. The condition is also an embarrassment to us when we have visitors.

We have reported the problem to our landlord but he says he cannot do anything about it because the roof belongs to the owners of the building. He has given us their phone number but they will not talk to us because we do not own the flat.

Our landlord told us a month ago that the owners of the building have got quotes for the work but nothing has happened. No one has even come into our flat to look at the damage, instead we have had to send photographs to prove there is a problem!

Many of our friends say that we should stop paying our rent but we do not blame our landlord if it is not his responsibility, although we don’t feel that he is being forceful enough with the building owners. We are just so frustrated that no one is taking us seriously. Is there anyone else we can go to for help?

Damp and mould are notoriously difficult to deal with as it is often hard to find the cause, and indeed the cause if often down to the tenant failing to heat and ventilate the property.  See this post here.

However clearly here the fault is not down to you so I will answer on that basis.

The main thing that springs to mind in your case is to ask the Local Authority to carry out a Housing Health and Safety Ratings survey (HHSRS) inspection.  If they find any ‘category one hazards’ they will serve an improvement notice on your landlord requiring him to deal with the situation.

They may also be able to exert pressure on the headlessor whose liability it is to get the work done.

So far as your landlords’ liability to you as tenant under his statutory repairing covenants are concerned, it is a defence if he does not have the legal right to do the work.  We discussed this topic on this post and there are some very helpful comments there on the landlords obligation.

It may be that there is nothing your landlord can do if the headlessor has actually arranged for the work to be done but, for example, is waiting for the contractor to start work.

Tenants are not legally entitled to just stop paying rent as your friends suggest although they entitled in some circumstances to do the repair work themselves and deduct the cost from the rent as I discuss here.  This is not possible in your case as the repair works are not something you could do yourself.

If you feel that withholding the rent anyway is the only way to get something done, you need to be very careful as non payment of rent can be a ground for possession.  Make sure you keep the money safe in a separate bank account so you can pay it over quickly if required (and let the landlord know you have done this).

Finally, your husband may perhaps have a claim against your landlord for compensation for personal injury.  If you wanted to investigate this it would be best to use a firm which has a specialism in housing work, such as Anthony Gold, so you can get proper advice on the issue in the round.

In summary, the best people to help you right now are the Local Authority Environmental Health Dept who will come out and do an HHSRS inspection.  You may also be able to get help from a solicitor in respect of the personal injury aspect.



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12 Responses to What can we do about black mould on the walls?

  1. I ran this by our environmental health officers. For those readers who may not know the council has EHOs who can help deal with repairing obligations to varying degrees depending on staffing levels and corporate commitment.

    They were of the view, and I share this, that the statutory repairing obligation under Section 11 Landlord and Tenant Act 1985 is firmly on the landlord and any repairing notices that need to be served or remedial action that needs to be taken lies at his feet.

    Whatever remedies he brings to bear are his affair. In this case it will be to force the freeholder, who is above him in the responsibility stakes to do the works.

    The pressure needs to be applied in this area. So the view of my council’s EHOs is that it IS your landlord responsibility. His problems with the freeholder are not your concern.

  2. I agree with Ben and Tessa though neither will like what I then have to say.

    I think HHSRS is your only angle really to apply any pressure – but depending on the terms of your agreement you may then be faced with retaliatory eviction.

    Having said that and Ben will know more than me on this (and Tessa too I suspect) but Ben is your “main man” as he is closer to the relavant action but the LA also has some powers in this respect.

    Ben am I not right in saying that if the EHO deems a situation a retaliatory eviction they can serve a notice to take over the management of the property?

  3. Yes retaliatory eviction under s21 by the landlord is always a possibility. There is not much that can be done about this other than hope it won’t happen. Or not complain.

    Ben will have to answer your other point.

  4. That’s the point Tessa as I understand it the Council can step in with an Order whether it is an HMO or not.

    Come on Ben where are you when you are needed?!!!

  5. An LA, EHO or other officer does not have any power to take over management of a property if it deems a threatened termination is a retaliatory eviction, unless it is connected to the landlord’s failure to obtain a statutory licence and that it is a threat to the person’s welfare(Housing Act 2004 s102 & 104) or if it is necessary to prevent serious damage to the health and safety of the occupier or other people in the area. To my knowledge there have not been any cases at the First Tier Tribunal comparable to facts of this situation. In these given facts a Tribunal would without doubt overturn any LA decision to take over management.

    In a case such as this the tenant could take her own civil action for an injunction and the council could enforce any HHSRS notice and thereby resolve the problem.

    If there were such powers then I expect every LA would be overwhelmed with demands from aggrieved tenants to secure different management.

    The government will be considering problems associated with these issues during this year and Shelter is currently undertaking some research into retaliatory eviction in connection with disrepair with a view to present their results to government.

  6. This will quite possibly cost more than £250/leaseholder and qualify as major works.

    A bit of peeling wallpaper and black mould would not be enough to deem it an emergency to get consultation dispensation.

    Therefore the full section 20 procedure would need to be followed;

    http://www.lease-advice.org/publications/documents/document.asp?item=19#15

    How long will the consultation take?

    The whole process may take a number of months for the following reasons:

    leaseholders have 30 days to respond to a notice of intention served at the pre-tender stage;
    if a contractor is nominated by a leaseholder(s) or RTA, the contractor may need to be invited to tender;
    if contractors nominated by leaseholders or an RTA submit a tender, landlords will need to check whether the contractor meets the necessary criteria;
    time spent having regard to observations from leaseholders;
    landlords must make a summary of the observations and responses to the notice of intention (first notice), which must be sent to leaseholders with the notice of landlord’s proposals or statement of estimates (second notice) ;
    leaseholders have a further 30 days to respond to the notice of landlord’s proposals served at the tender stage.

    So the whole process, even before the work starts, takes many months with all parties working together in goodwill.

    If you add into that mix, an absent freeholder, non-paying leaseholders, bankrupt leaseholders, bankrupt freeholder, ongoing disputes, RTM… the list is endless. It can take a very long time.

    EHO’s can stamp their feet all they like, a leasehold landlord doesn’t have a magic wand to make it happen. Whilst it is the landlords responsibility, they can do only what is reasonably and legally possible.

    The track record of councils expertise in this area is highly questionable BTW, see this (one of many);

    http://www.theguardian.com/housing-network/2012/jul/24/right-to-buy-revival-leaseholders

    Leaseholders in the Emanuel House estate in Westminster faced bills of up to around £60,000 after overspends inflated the council’s original £2.2m estimate of a major refurbishment scheme. These charges have now been cut dramatically to just £250 each after the Residential Property Tribunal – which adjudicates disputes between landlords and leaseholders – ruled Westminster’s consultation process as confusing, flawed and invalid. This lumbers Westminster with the lion’s share of the repairs tab, now likely to tip £3m

  7. Sorry guys, been stoopidly busy these past few days.

    Yeah Colin is right EHOs dont have powers to take over for retaliatory eviction. Their powers to intervene in terms of management orders is discretionary as well, which in the real world means the discretion is dictated by resources rather than notions of public protection.

    Personally I have always liked the idea of management orders anyway. The dissenters (which is my EHO colleagues) say we dont have the resources to manage but there is no reason why we couldnt contract out the management to an agent.

    Resources, resources, resources, to paraphrase Tony Blair. Thats what it comes down to. We recently had someone in from Newham’s enforcement team to talk to us about the fine details of their legendary enforcement project. He told us they had 120 enforcement officers until recently but this has dwindled to 80+. He asked us how many we had. “Three” came the quiet feeble response haha

    Andrew Arden wrote a very interesting article a while back on retaliatory eviction http://laghousinglaw.com/2012/08/13/retaliatory-eviction/ suggesting other defences to it, based on some good old Lord Denning logic from years back but EHO action? Aint gonna happen.

  8. Hi Ben

    I’d like to be crystal clear on these management orders and powers to intervene.

    Leaving aside the discretionary bit and resources etc, what is the actual enshrined in Statute position of when a Council can apply for a management order IF they have the resources.

    ASs I understand it they can intervene or try to in any situation whether it is an HMO or not, proivately managed or by an incompetent agent etc.

    Can you nail the circumstances that could lead to an application for an MO whether successful or not?

  9. IO
    There is little that I can add to my previous reply. In relation to your paragraph 2 the Statute is, as I generally indicated in my first post under the 2004 Act; there are management orders and special interim management orders and yes they apply to private properties and not just HMOs. The issue of incompetent agents is not relevant as the problem relates to how the property is managed, not by whom.

    You know that legislation is complex and therefore to try to answer an issue it is generally not possible to refer to one particular section as there are often definitions, schedules etc that are not within each section of the Act. I gave some of the sections in the last post but I will add the actual text from two other that indicates that it can apply to a “single tenancy (s103 ie not an HMO)

    HOUSING ACT 2004 Section 101
    An interim management order is an order (expiring not more than 12 months after it is made) which is made for the purpose of securing that the following steps are taken in relation to the house—
    (a)
    any immediate steps which the authority consider necessary to protect the health, safety or welfare of persons occupying the house, or persons occupying or having an estate or interest in any premises in the vicinity, and………………….

    103
    Special interim management orders
    This section applies to a house if the whole of it is occupied either- (a)
    under a single tenancy or licence that is not an exempt tenancy or licence under section 79(3) or (4), or
    (b)
    under two or more tenancies or licences in respect of different dwellings contained in it, none of which is an exempt tenancy or licence under section 79(3) or (4).
    (2)
    A residential property tribunal may only authorise the authority to make an interim management order in respect of such a house under section 102(7) if it considers that both of the following conditions are satisfied.
    (3)
    The first condition is that the circumstances relating to the house fall within any category of circumstances prescribed for the purposes of this subsection by an order under subsection (5).
    (4)
    The second condition is that the making of the order is necessary for the purpose of protecting the health, safety or welfare of persons occupying, visiting or otherwise engaging in lawful activities in the vicinity of the house.

    The circumstances that you would like to “nail” are so wide as to be impractical to specify but have included some abandoned properties for which it has not been possible to trace an owner or obtain their agreement for repairs – and (the community safety bit) perhaps a wall is likely to collapse or there is vermin infestation. Or a property is occupied but it is managed in such a poor way (botch and repeat repairs accepting certain tenants known to cause grief). Orders and special orders will be at the extreme end of problem tenancies.

    The RICS website (as an independent body)may have more detail for you to look at.

    Apologies to Tessa if I have taken too much space.

    HBW
    I think that citing the Westminster case has mixed two different issues. Westminster EHOs will not have had any involvement in the case in connection with enforcement standards. Westminster was the freehold landlord and it would have been their leasehold section that attempted a very poorly managed improvement programme and the tenants were seeking to limit the improvements and to ensure competent tendering.

  10. I come across retaliatory notices a lot and short of trying to pull pinnock / article 8 against a private LL (very hard!) the best option we have is to approach the LA under Part VII and ask them to take an application under “no longer reasonable to occupy” – if EHO can conclude detriment to health it helps a fair bit.

  11. I would caution anyone suffering with mould to be very careful where there is mould.

    It is possible to inhale the spores and get long term or even permanent damage to your respiratory system.

    Mould is fungal so does not respond to antibiotics.

    Always wear a mask open windows.

    Thin bleach (29p at Tesco) will destroy it but just one spore will see it regrow. There is an anti-fungal paint which you can use after treatment, then paint over that paint if you want a different finish.

    In the USA there is a thing called sick building syndrome and Landlords face legal action. Some buildings are even condemned; over there they spray inside ducts with an acid compound.

    As for EHO, they are useless, they send a leaflet. Even with 127 flats infected they said “sorry we have been cutback to two people and this is not a priority for us.




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About the post author:

Tessa Shepperson

Tessa is a lawyer specialising in residential landlord and tenant law. She runs the Landlord Law website (now in its 12th year) and is a director of Easy Law Training Ltd and Your Law Store. Tessa also sits on the Property Redress Scheme Council. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google



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