Legal disputes in Scotland involving housing issues in the private rental market have been heard by the First-tier Tribunal for Scotland (Housing and Property Chamber) since December 2017. In the intervening years an increasing number of cases have involved tenants withholding rent against repair work not carried out.
A number of these cases have centred around condensation and damp within a property. Inevitably the landlords have raised rent arrears actions and the tenants have defended on abatement grounds.
There are also cases where tenants have initiated compensation claims against landlords for breaching the Repairing Standards under the Housing (Scotland) Act 2006.
In both situations the Tribunal hearings will usually involve a legal member and second member. In repairing standards cases these may involve a site visit, and the second Tribunal member will be a property surveyor.
Application is free to both tenants and landlords. It has been promoted as user friendly and keen to assist non-legal participants in an informal, open environment. The only solicitors present are the members of the Tribunal, unless either party instruct one to represent them. Otherwise, they can represent themselves, or use another representative, such as Key-Lets.
Over the years we have represented our landlords in a variety of cases and procedural applications, such as rent increases under a Private Residential Tenancy (PRT).
Our own experience of Tribunals is that they must be taken as seriously, as if presenting to a Sherriff Court.
It is true the setting is ‘informal’ compared to a court setting, representation rules relaxed, and the members try to put those presenting at ease.
It is also true a presentation must be based on legal fact and evidence to succeed.
Condensation actions are a case in point for it is for the Landlord to show what has been done to identify the problem and what actions to resolve the issue.
Reference will be made to the lease, email communications rather than hearsay, specialist damp reports, inspection reports, and photographic evidence.
What the lease says is closely scrutinised by the Tribunal. This contact sets out the tenant’s liability to look after the property they are renting. A poorly crafted lease weakens the landlord’s case for reparation or defence in a legal action against them.
In my opinion the free to download, Scottish Government Model PRT lease is light on landlord protection.
Tackling condensation is pared down to one line found in Clause 17. REASONABLE CARE:
The Tenant agrees to take reasonable care of the Let Property and any common parts, and in particular agrees to take all reasonable steps to:
- keep the Let Property adequately ventilated and heated;
To address this spartan offering we have the following clause in our PRT contract stating:
The Tenant undertakes to take all reasonable steps to adequately heat and ventilate the Let Property to help prevent condensation. Where such condensation may occur, the Tenant must take care to properly wipe down and clean surfaces as required from time to time to stop the build-up of mould growth or damage to the Let Property, its fixtures, and fittings.
Greater clarity and direction must increase a landlord’s odds in any argument, especially as condensation is expressly stated.
There is also good reason to strengthen the tenant’s obligation to report damage or repairs in the lease. The Government Model lease states:
Clause 18, REPAIR TIMETABLE:
The Tenant undertakes to notify the Landlord as soon as is reasonably practicable of the need for any repair or emergency.
Our Key-Lets PRT lease states:
(e) To give immediate notice in writing of any structural damage and any defects in the Let Property or in the contents thereof as soon as the same shall take place or become apparent and to indemnify the Landlord against any additional loss occasioned by him through the Tenant’s failure to give such notice.
What the lease says and the legal obligations it places on the tenant is so important in succeeding both in a Tribunal hearing and a deposit claim adjudication. I would urge Landlord review the additional sub-clauses they can add into clause 37 of the on-line model. I also urge landlords with letting agents to check what lease has been issued on their behalf. Unfortunately we have found agents who use the basic Model PRT without additional protective sub-clauses.
DAMP ACTION PLAN
We recommend our landlords follow an action plan once damp is reported in a property.
This can include:
- a property inspection to record where the damp is, and to photograph the damage,
- emails to the tenant confirming the findings of the inspection,
- emails to the tenants attaching information on managing condensation in the home,
- Arrange tradesmen to visit and suggest possible reasons and solutions,
- Send specialist damp inspectors to raise an expert report and offer solutions.
These actions will identify the likely source of the damp, costs to resolve and time scale to carry out the work.
It has been suggested that taking time labelled photos of damp meter readings at inspections is desirable as evidence. However, interpreting the readout can be misunderstood if the inspector is not properly trained.
Equally, tenants have a habit of opening windows, increasing heating, and moving furniture prior to an inspection following a report of damp. This is true both for the initial property inspection, and the specialist expert inspection.
A specialist damp report is usually between £100 and £150. However, it is a must-have document from an independent, expert in the damp solution field. It will indicate the landlord’s determination to take the tenant seriously, and find a solution to the problem.
Condensation resulting from a tenant’s lifestyle is likely when the specialist report discounts rising or penetrating damp, and there are no water repairs needed internally.
Now it is a question of condensation management.
Landlords can assist in providing a dehumidifier to remove moisture from the air. Which!, the consumer magazine, regularly test dehumidifier units costing between £100 and £200. The latest Best Buy dehumidifiers report identifies the Inventor EVA II Pro 20L R290 as efficient, easy to use and low in running costs.
Several our landlords have invested in 20ltr dehumidifiers to assist tenants with condensation problems. Students are one tenant group who have benefited this way.
Increasing air flow through a property is also recommended by installing trickle vents in windows, pasifier vents in walls and upgrading extraction fans. Such improvements come at a cost. However, as these outlays are tax deductible, landlords should compare the cost of a fractious tenant and damage to the property fabric against the costs of improvements.
There have been occasions where tenants have recognised their liability and contributed towards improvement costs.
And there are tenants who do not accept they are at fault. They may stop paying rent, call in the Council’s environmental health officer, as well as bring in Shelter and Citizens Advice to represent them.
The fact remains that a landlord who has carried out all the steps to identify the cause as ‘lifestyle’ has a strong counter argument. More so if they have reasonably assisted in helping the tenant manage the issue and helped them recognise their liability.
Realistically the landlord pays in time, effort, and money to fix properties damaged by condensation.
There is also the cost of chasing rent arrears through the Tribunal if the tenant is worth claiming from.
We recommend landlords include a cost clause in their lease which is not included in the Scottish Governments Model PRT lease. This makes the tenant liable for any costs, including Tribunal representation, when a tenant breaches their contract.
Unlike the courts, the Tribunal in Scotland does not award expenses to the winning party. A cost clause creating a contractual obligation to allow representation fees be added to any claim, especially rent arrears claims.
Finally, here are two Tribunal cases landlords can consult in Tribunal actions for condensation claims.
Both are cases where landlords have won payments against the tenant’s defence of unfit living conditions due to condensation.
The first involves a Short-Assured Tenancy and the second a PRT.
If any landlord wants more information on Key-Lets Services, including Tribunal services, or any other aspect of letting please give me a call on 01292 289289 or reach out to [email protected]. I and the team will be happy to help. Key-Lets registration is LARN1903012.
 See our DAMP DAMAGE – WHO IS RESPONSIBLE? Blog.
Call Tim on 01292 289289 or Email: [email protected]
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