To help simplify the process if there's a dispute over deposit deductions at the end of a tenancy, we publish an adjudication digest on our website every month. The adjudication digest takes a real dispute and examines the evidence provided by both parties and the reasons behind the adjudicator's decision. If you've read the latest issue of Landlord Focus then you may have spotted our new adjudication digest 'Dampened Enthusiasm', which takes a closer look at a dispute over condensation and damp in a property. We've published the full details of the case below.


The parties to this case were unable to resolve their dispute regarding who was responsible for damp and condensation in the property. SafeDeposits Scotland held £1000 as a deposit for the tenancy, but the landlord stated the full claim was £1175 in total for loss of rent, redecoration expenses and the cost of hiring dehumidifiers. The tenants didn't agree to any deductions, which meant £1000, the full amount of the deposit, was subject to adjudication.

The landlord purchased the buy-to-let property in December 2014. The Home Report highlighted ‘a localised area of dampness evident around the fireplace’. While the Home Report advised that the issue required future attention, the landlord hadn't completed any repair or replacement at the commencement of the tenancy in January 2015. The check-in report specified the property was ‘cleaned to a good standard’ at the onset of the tenancy.

Within three weeks of the tenancy start date the lead tenant contacted the landlord to bring his attention to a damp patch and mould growing on the living room wall, below and beside the largest window. The landlord arranged for a damp specialist to visit the property later that week – while a report wasn't commissioned, the specialist advised verbally that the problem was due to condensation. The landlord reminded the tenants, as stated in their tenancy agreement, not to dry clothes or other items inside the property; to regularly open windows to allow for adequate ventilation; and to use the central heating to maintain a steady temperature inside the property.

As the damp specialist recommended that the property may benefit from the use of dehumidifiers, the landlord emailed the lead tenant to ask if she agreed to split the expense of renting two dehumidifiers from a local supplier between himself and the tenants. The tenant replied to say that, as running the dehumidifiers would increase their electricity bills, they weren't willing to contribute any amount to the cost of renting the equipment.

Despite the use of dehumidifiers in the living room, the tenants argued that the problem was becoming worse, with the damp patch becoming larger and mould growing on items kept in the living room, including children's toys. The lead tenant also claimed that the problems had caused her stress and anxiety which had affected her performance at work. She spoke to the local council who arranged for a qualified specialist to complete an inspection of the property. The specialist advised, in a report to both the landlord and the tenants, that the mould and damp was being caused by penetrating and rising damp. He highlighted the unvented, blocked-up chimney as a potential source of the problem. The specialist also advised that a lack of trickle vents in the windows and the absence of an extractor fan in the bathroom may have exacerbated any build-up of condensation in the property.


The landlord maintained that, as the property had not suffered from damp patches or mould prior to the tenancy, the problem was due to condensation caused by the tenants, specifically neglecting to use the tumble dryer which was provided and drying clothes and bedsheets in the living room. The tenants argued that they only dried washing in the porch area and not in the main house.

The tenants contacted the landlord by email on 4th March 2015 to confirm that they no longer wanted to live in the property in its current condition and wished to move out the following week. The landlord responded to confirm he would carry out a check-out report when the tenants handed over their keys on 11th March 2015.

Decision

The landlord claimed £600 for the loss of rent during the interim period between the tenants vacating and a new tenant moving into the property. However, an email from the landlord on 4th March 2015 stated that he would carry out a check-out report when the tenants handed over their keys on 11th March 2015. If a tenant leaves before the end of the fixed term, or without notice, the landlord will usually try to find a new tenant to take on the property, but it should be made clear to the tenant the costs they will be asked to meet in return for ceasing to pay rent (e.g. the tenant may be released early subject to a suitable new tenant being found and the payment of the landlord's costs in re-advertising the property). However, from the correspondence provided, the adjudicator felt it was clear that the tenants left with the landlord's consent, with no costs set out for early termination. Accordingly, the tenants were not liable for loss of rent.

In order to make an award for redecoration, the adjudicator must see evidence that the condition of the decor of the property deteriorated between the start and end of the tenancy. The check-in report specified the property was ‘cleaned to a good standard’, but made no mention of the condition of the decor. Where a check-in report is silent on condition, an adjudicator is unable to assume that the decoration of the property was in good order at the outset of the tenancy. However, in this case, the tenants admitted in their evidence that the deterioration in the decoration occurred during the tenancy, but argued that it was not their fault. While the damp specialist arranged by the landlord had advised verbally that the problem was due to condensation, no evidence of this was submitted to the adjudicator to substantiate the claim. The specialist report submitted by the tenants from the local council observed that there was a damp problem in the living room due to a build-up of debris in the blocked-up chimney. It was also noted in the report that a lack of trickle vents in the windows and the absence of an extractor fan in the bathroom may have exacerbated the problem with condensation. The evidence provided by both parties suggested that there were a number of factors which contributed to damp and condensation in the property, including: it may have been inherent in the property; failures by the landlord, particularly the lack of proper means for the property to be ventilated, may have increased the possibility that the problem might arise; and the tenants drying laundry in the porch may have contributed.


In addition, the landlord had not provided any evidence to substantiate the amount claimed for, such as an invoice for repainting the wall, or information about the age and condition of the decor at check-in, etc. In these circumstances, where the contributory factors are numerous and evidence is limited, the adjudicator considered that it was reasonable and sufficient to split the £300 claim for redecoration between the landlord and tenants in the ratio of 2:1. The landlord was therefore awarded £100 for redecoration costs.

The landlord also claimed £275 for the cost of hiring two dehumidifiers over an extended period of time during the tenancy. However, the email correspondence between the landlord and the lead tenant made clear that no agreement had been reached on splitting the expense. The tenants' contractual obligations are fundamental to the distribution of the deposit, and, with no requirement to pay for the cost of renting dehumidifiers outlined in the tenancy agreement, or any subsequent agreement made, the adjudicator made no award for this expense.

While the lead tenant claimed that the damp and condensation problems at the property resulted in stress and illness, the adjudicator is unable to take into account counterclaims of this nature when deciding how to allocate any disputed amount. The tenant was therefore not awarded any amount for compensation.


You can read more adjudication digests - and guidance on how to present a claim to the adjudicator - in the guidance documents section of our website.