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The short answer:

A tenant, or someone connected to them who was at the property, can claim for death or personal injury provided the mould resulted from the property being in disrepair.  If, however, the mould did not result from the property being in a state of disrepair, say for instance the property was simply old or inadequately ventilated, then a claim will be difficult.  Even if they cannot bring a claim for personal injury or death, they may still be able to bring a claim for the financial cost of the damage or improving the property to get rid of the damp or mould.

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The long answer:

The tragic death of Awaab Ishak has shone a light on the danger of mouldy properties.  In truth though, as a personal injury solicitor, I have come across many cases over the years of chest infections and other injuries resulting from mouldy properties but, very often, the barrier to these cases being successful is the entirely illogical way the law is presently worded.  More specifically, the wording and courts’ interpretation of the Defective Premises Act 1972, is that in order for there to be a personal injury claim (which would include a claim for death), the injury or death needs to be caused by an issue of “disrepair” i.e. something broken that should have been fixed.

This results in the bizarre situation of a landlord being able to let out an old, damp, mouldy etc property, which would certainly present a foreseeable risk of harm, and provided the poor state of the property was not due to disrepair i.e. nothing was broken or damaged etc to cause that damp or mould, the landlord is generally protected from a personal injury claim (but they can still face other claims for financial compensation, see below).

Over the years, various building regulations have been introduced, which all new houses must conform to.  Many of these have improved issues such as ventilation, damp, mould etc, such as the requirement for double glazing.  Also, alterations to houses must confirm with any building regulations in force at the time.

But what happens when there is an old property, built say 100 years ago, which, due to lower building regulations standards at that time, combined with say its location (many areas of Lancashire are damp hence the siting of cotton mills etc there) is susceptible to damp and mould?  Well, so far as the Defective Premises Act 1972 is concerned, the landlord need not worry about any claim for injury or death, provided nothing is actually broken or damaged and not repaired.

Tenants do have other rights though such as under The Homes (Fitness for Human Habitation) Act 2018 which requires, amongst other things, that houses should be free from damp and should have ventilation.  However, these claims, like the Landlord and Tenant Act 1985, are breach of contract claims rather than personal injury claims.  Therefore, the tenant typically claims for the cost of damaged items and/or the cost of putting the property into a state fit for human habitation.  Essentially, this is little use when the main issue is personal injury or death, in which case the tenant is left with the illogical Defective Premises Act 1972 i.e. trying to show that the mould came from “disrepair” rather than the property simply being inadequate.  Practically, this can require obtaining expert evidence from a surveyor to ascertain whether the damp or mould resulted from disrepair or not.  There also needs to be expert evidence, such as from a chest physician, to establish whether the respiratory issues resulted from the damp or mould.

There are many claims being made now under The Home (Fitness for Human Habitation) Act 2018, principally as many landlords, in particular local authorities, have ignored their obligations.  Speaking to those who practise in this area, many claims are being unreasonably defended, which, in my personal view, is likely due to the fact that the solicitors who have local authority contracts tend to unreasonably delay and extend claims (at least that is how they deal with personal injury claims).

In my view, the law regarding personal injury resulting from damp and/or mouldy properties is in urgent need of reform.  How can we, in the 21st century, enable a landlord to let out a property that is a foreseeable risk of serious harm to those who occupy it, just because nothing is technically broken  or in disrepair?  Whilst tenants can press for things to be put right beforehand, under the new 2018 Act, those people who are impacted by damp or mould will still find themselves in a difficult position.

By James Winterbottom, Solicitor

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