Around one in 10 homes in Scotland have problems with condensation, dampness and mould, according to the latest Scottish house condition survey.
It is estimated that 90,000 dwellings within the Scottish social rented sector have damp and mould issues.
The prevalence of the problem in the private rented sector is not well understood and is poorly documented.
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Sadly, many landlords still wrongly blame tenants’ lifestyles for the incidence of mould and damp.
Not ventilating or heating the property properly are common reasons given.
In practice, most mould difficulties occur because of poor structural or housing conditions – inadequate external insulation, cold bridges within walls, a lack of an efficient and affordable heating system or poor ventilation within a property.
Scots law provides that a residential let must be free from dampness and mould in order to be reasonably fit for human habitation.
A home must be able to be lived in free from dampness, whether the tenant is in receipt of social security benefits or a reasonable wage.
There is ample case law to support the principle that a house which was uninhabitable by reason of being excessively cold or damp could not be said to be habitable simply by applying a large amount of heat and incurring inordinate heating bills.
In 2022, an English coroner found that two-year-old Awaab Ishak died of a respiratory condition caused by exposure to mould in his home in Rochdale.
Following his death, his family called for legislation to prevent similar preventable tragedies.
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The last UK government responded by introducing 'Awaab’s law' – section 42 of the Social Housing (Regulation) Act 2023, which creates a new legal remedy to tackle hazards to fitness for human habitation in the social rented sector.
This month, the new Labour government pledged to extend Awaab’s law to the private rented sector in England and Wales via the Renters’ Rights Bill.
We still await the detailed regulations for Awaab’s law, but it’s understood that emergency works to render a tenancy fit for human habitation must be executed within 24 hours.
The changes from Awaab’s law will outline robust timeframes for landlords, compelling them to investigate issues within two weeks and commence repairs within an additional seven days.
Failure to meet new time limits will expose landlords to tough legal consequences, allowing tenants to seek court enforcement and compensation.
Meanwhile, in Scotland, we don’t have any expedited route for fitness repairs. The remedy of specific implement in the sheriff court is ill suited to dampness and mould cases – we can secure compensation but enforcing urgent works is almost impossible.
Likewise, private sector tenants can apply to the first-tier tribunal for a repairing standard enforcement order (RSEO).
Yet many landlords ignore a RSEO and the tenant then has to seek a rent relief order. Meanwhile they still have to live in damp and mouldy conditions.
The risk to respiratory and mental health from dampness, mould and house dust mites is well understood, so why isn’t Scotland introducing an equivalent to Awaab’s law for all tenants?
Such an expedited enforcement procedure should be to the sheriff court for all tenants, given the seriousness of the matter at stake, with no question of court expenses or lodging dues.
If we don’t act, Scotland will lag behind the rest of the UK on this vital health issue.
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