Clearing the Air! Who’s responsible for mould in a rental property?
One of the most disputed areas of property rentals is the question of who is responsible for mould within the property. Mould can show up in your rental property overnight and the parties to a lease agreement always dispute whose responsibility it is to ensure the removal of the mould before it has serious health consequences for the occupants of the property.
How is mould caused?
Mould can be caused by a number of issues, primarily being a leaky roof or walls, leaky plumbing or the prolonged build of up condensation from cooking or showering in an area of the property that has poor ventilation or air circulation. Majority of the time, the issue will arise from either a poorly constructed room that does not meet the ventilation requirements set out in the National Building Regulations or the occupant is not ventilating the particular room sufficiently.
National Building Regulations – what are the requirements for ventilation in a property?
Part O of the National Building Regulations states that any habitable room, bathroom, shower-room and room containing a toilet pan or urinal, or any room which is a parking garage shall be provided with a means of lighting and ventilation which will enable such room to be used, without detriment to health and or safety or causing any nuisance, for the purpose for which it is designed.
The requirement will be deemed to be satisfied where the lighting and ventilation are in accordance with SANS10400-O:
“It is a requirement for the owner of a property that where, for the purposes of natural ventilation, a room is provided with an opening or openings;
(a) The position of such opening or openings in relation to each other and to internal doors to such room shall be such as to enable such room to be ventilated ensure that their property is sufficiently ventilated; and
(b) The arrangement and sizes of such openings in a garage shall be such that the quantity of noxious fumes or gases in such garage does not exceed a safe limit.”
The SANS 10400-O does provide the specific requirements for natural ventilation and goes further to state the requirements of the installation of artificial ventilation in properties that do not meet the requirement of natural ventilation.
It is clear to see from this that it is the responsibility of the owner to ensure that a property is sufficiently and adequately ventilated by means of natural ventilation or artificial ventilation in the event that the property is insufficiently ventilated naturally. However, where does the responsibility of the tenant lie in this respect?
Can tenants be held liable if regulations state the responsibility lies with the owner?
Tenants will be occupying your property for long periods of time and obviously the ventilation systems that are installed in the property must be used in an appropriate and consistent manner so that the property is sufficiently ventilated.
This is regulated by Regulation 7(2)(d) of the Rental Housing Act Unfair Practice Regulations which clearly states: “A tenant must use, in a reasonable manner, all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances including elevators on the premises.”
Therefore, our legislation does place an obligation on the tenant to use the necessary ventilation systems included in the property to ensure that it is correctly ventilated. It is important to include this obligation in your lease agreement in order to hold the tenant liable for not utilising these systems correctly, resulting in the development of mould in the property. The TPN Lease Agreement does include this particular clause to protect landlords and property practitioners in these situations. The TPN LeasePack can be purchased by visiting the TPN Shop here.
Mould Responsibility Test
TPN Legal have developed a test that can be applied to determine whether the owner or the tenant is responsible for any mould issue in the property, taking into consideration the above.
A contractor will need to be requested to investigate the mould and determine the cause of the mould:
- Should the mould have been caused due to structural irregularities or insufficient ventilation systems in the property then the responsibility and costs of the mould removal will be for the owner’s account.
- Should there be no structural ventilation issues, and it has been determined that the mould was as a result of the tenant failing to adequately and reasonably use the ventilation systems, the responsibility and costs of the mould removal will be for the tenant’s account.
Important to note: The call-out fee of the contractor will be paid by the party responsible for the mould!
Mould disputes can sometimes be a nasty affair – however, it does not have to be with the application of the Mould Responsibility Test. It is also best practice to point out the maintenance clause in your lease agreement to the tenant before they take occupation, making them aware of their specific obligations in terms of the property.
For more insights and updates, join us over on TPN’s YouTube channel, here.
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