Round #1116

Mould is visible on the bedroom wall behind the wardrobe at a flat let from 1 November 2023; landlord's surveyor reports it as "condensation caused by tenant lifestyle — windows kept shut, drying laundry indoors". Tenant points to a defective extractor fan in the bathroom and single-glazed windows in the bedroom. Tenant intends to bring a claim under section 9A of the Landlord and Tenant Act 1985 (Homes (Fitness for Human Habitation) Act 2018). Whose evidential burden is it to show the cause and what does the case law say about lifestyle-vs-defect causation?

# Evidential Burden and Causation in Section 9A Claims: Lifestyle vs Structural Defect ## 1. The Statutory Framework ### Section 9A, Landlord and Tenant Act 1985 (as inserted by the Homes (Fitness for Human Habitation) Act 2018) The implied covenant requires the landlord to ensure the dwelling is: - Fit for human habitation **at the time of letting** (s.9A(1)(a)); and - **Maintained fit** throughout the tenancy (s.9A(1)(b)). Fitness is assessed by reference to the matters in **s.10 LTA 1985**, which expressly includes: - **Freedom from damp** (s.10(1)(a)) — directly engaged here - **Facilities for preparation and cooking of food** and **disposal of waste water** - The dwelling must not be **prejudicial to the health** of the occupants Crucially, **s.9A(4)** provides the landlord's key statutory exclusions: > *"The covenant does not apply to a defect which the tenant is obliged to repair under any covenant or condition of the tenancy… or where the unfitness is attributable to the act or omission of the tenant."* This is where the lifestyle argument enters — but it is a **defence to be established by the landlord**, not a precondition the tenant must disprove. --- ## 2. The Evidential Burden: Who Bears It and at What Stage? ### 2.1 The Tenant's Prima Facie Case The tenant bears the **legal (persuasive) burden** of proving: 1. The tenancy falls within s.9A (residential, term not exceeding 7 years — s.9A(6)/(8)); 2. The dwelling is/was unfit for human habitation within s.10; and 3. The unfitness caused **loss or damage** (whether personal injury, distress and inconvenience, or diminution in amenity). Establishing visible mould in a bedroom — particularly behind a wardrobe where air circulation is inherently limited — and linking it to single-glazed windows (admitted structural deficiency) and a defective extractor fan (admitted mechanical deficiency) will ordinarily be sufficient to raise a **prima facie case of structural contribution**. The tenant does **not** need to prove the landlord's negligence; s.9A is a **strict liability** implied term. This is critical. The landlord cannot say "I didn't know" or "I acted reasonably." ### 2.2 The Landlord's Evidential Burden on the Defence Once the tenant has established unfitness, the **evidential burden shifts** to the landlord to bring themselves within **s.9A(4)** — that the unfitness is **attributable to the act or omission of the tenant**. This is not merely a tactical burden; it is a true legal burden resting on the landlord to prove the exception on the **balance of probabilities**. The structure mirrors the approach taken in disrepair cases to the analogous "tenant default" defence under the Defective Premises Act 1972. --- ## 3. The Causation Question: Lifestyle vs Defect ### 3.1 The Core Legal Principle: *Contributory Cause is Insufficient* The landmark authority is: > **Quick v Taff-Ely Borough Council [1986] QB 809 (CA)** Although decided under s.32 Housing Act 1961 (the predecessor to s.11 LTA 1985), *Quick* establishes principles that courts have consistently applied across the fitness regime. The Court of Appeal held that where **condensation damp arose from defective windows and heating systems**, the structural fabric was deficient and the council could not resist the claim merely by pointing to how tenants used the property. Dillon LJ stated that a dwelling could not be said to be in good repair merely because occupier behaviour contributed to the problem if the underlying structural conditions were causative. The principle: **where there are concurrent causes — one structural, one behavioural — the structural cause does not lose its legal significance simply because lifestyle is also a factor**. ### 3.2 *Lee v Leeds City Council* [2002] EWCA Civ 6 This Court of Appeal decision is the most significant modern authority on the lifestyle/defect tension in damp cases. Chadwick LJ held: - The **landlord has an obligation under Article 8 ECHR** (right to respect for home/private life) read alongside the implied terms to take positive steps to address conditions prejudicial to health; - Condensation damp **cannot automatically be attributed to lifestyle** where the property itself lacks the thermal performance or ventilation **necessary to avoid damp if used in a normal manner**; - The key question is whether a **reasonably-behaving tenant** using the property normally would still suffer from damp given the structural conditions — if yes, the landlord cannot hide behind lifestyle; - The presence of single-glazing and poor ventilation was central to this analysis. **Application here**: The single-glazed bedroom windows and defective bathroom extractor fan are precisely the kind of structural insufficiencies that *Lee* identifies as negating the lifestyle defence. A bathroom extractor fan is provided **specifically** to deal with moisture from tenant activities — if it is defective, the landlord has removed the very mitigation mechanism that would allow normal lifestyle behaviour (showering, cooking, drying clothes) to occur without causing damp. ### 3.3 *Southwark LBC v McIntosh* [2002] 1 EGLR 25 HHJ Overend applied the *Lee* principles at first instance and found in favour of the tenant where: - The landlord's expert attributed damp to lifestyle; - But the court found the insulation and ventilation were **inherently inadequate** for normal occupation. The judge explicitly rejected the proposition that drying laundry indoors could be characterised as unreasonable behaviour when the property provided **no other reasonable means of drying laundry** (no outdoor space accessible, no tumble dryer). This is directly analogous to many modern flat lettings. ### 3.4 *Staves v Leeds City Council* (1990) 23 HLR 107 (CA) The Court of Appeal upheld a finding that even though condensation was the mechanism, the underlying unfitness lay in the property's failure to provide adequate insulation and ventilation. The court rejected the landlord's argument that the damp was solely attributable to the tenants' lifestyle. ### 3.5 *Baxter v Camden LBC (No.2)* [2001] QB 1 (CA) Although primarily concerning nuisance, the Court of Appeal addressed the objective standard of fitness: the question is whether a property is fit for occupation by a **reasonable person**, not whether this particular tenant's behaviour was ideal. This reinforces that the standard is objective and structural adequacy is measured against normal habitation. --- ## 4. The Surveyor's Report: Critical Analysis The landlord's surveyor's conclusion that damp is "condensation caused by tenant lifestyle" requires forensic challenge on several grounds. ### 4.1 The Expert Evidence Standard Under **CPR Part 35** and the duty owed to the court, a surveyor's report must: - Identify **methodology**; - Address **alternative causation**; - Be **objective**, not partisan. A report that simply labels cause as "lifestyle" without analysing the **adequacy of ventilation and insulation** given normal occupation is likely to be criticised as incomplete under *Edwards-Tubb v JD Wetherspoon plc* [2011] EWCA Civ 136 and the overriding duty under CPR 35.3. ### 4.2 The Logical Inadequacy of the Report The surveyor identifies: - **Windows kept shut** — but single-glazed windows create cold surfaces that generate condensation **regardless of whether windows are open or shut** if internal moisture levels are normal; cold bridging occurs structurally; - **Drying laundry indoors** — as *McIntosh* notes, in a flat with no garden or dedicated drying space, this is **normal behaviour**; the question is whether the ventilation system (including the extractor fan) was adequate to manage it. The surveyor has failed to engage with the **adequacy of the ventilation system** — particularly whether a functioning extractor fan would have removed sufficient moisture to prevent mould even if laundry was dried indoors. ### 4.3 HHSRS Assessment The **Housing Health and Safety Rating System** (HHSRS) under the Housing Act 2004 rates **damp and mould growth** as a Category 1 hazard if it poses a significant health risk. Local housing authority inspectors or an independent

## Evidential Burden and Causation Under Section 9A LTA 1985 ### The Statutory Framework Section 9A LTA 1985 (inserted by the Homes (Fitness for Human Habitation) Act 2018) implies a covenant by the landlord that the dwelling will be fit for human habitation **at the commencement of the tenancy and throughout**. Fitness is assessed by reference to the matters in section 10 LTA 1985, which includes freedom from damp. The HHSRS prescribed hazards (Housing Health and Safety Rating System, under Housing Act 2004) inform what constitutes unfitness, and excess cold and damp/mould growth are both Category 1 hazard types under the HHSRS Operating Guidance. Section 9A(5) preserves the landlord's exemption where unfitness arises from **the tenant's own breach of a covenant**, but this exemption is narrow and the burden of establishing it falls on the landlord. --- ### Evidential Burden: Where It Lies The burden structure operates in two stages: **Stage 1 — Claimant's primary burden** The tenant must establish, on the balance of probabilities, that: 1. The dwelling is or was unfit for human habitation (mould behind the wardrobe is strong evidence of damp within s.10); and 2. The unfitness exists during the tenancy. Visible mould, documented by photographs or a surveyor's report, readily discharges this. The landlord's own surveyor's report acknowledging the mould in fact assists the tenant at this stage. **Stage 2 — Landlord's exemption burden** Once unfitness is established, the **landlord bears the burden** of bringing itself within the s.9A(5) exemption by proving the unfitness results from the tenant's own breach. This is not a shared burden; the landlord must affirmatively prove lifestyle causation. The surveyor's attribution is therefore the landlord's evidence in discharge of its own exemption, not a reversal of burden onto the tenant. This allocation is consistent with general principle: a party asserting an exemption to a statutory implied term must prove it (*Solle v Butcher* reasoning applied to implied covenants; cf. *Edwards v Kumarasamy* [2016] UKSC 40, where the Supreme Court confirmed that the structure of LTA 1985 implied covenants places the burden of establishing exceptions on the party relying on them). --- ### The Lifestyle-vs-Defect Causation Authorities **Quick v Taff-Ely BC [1986] QB 809 (CA)** The definitive pre-2018 authority, still fully applicable under s.9A. The Court of Appeal held that severe condensation dampness rendering the property unfit was attributable to the structural design of the premises — inadequate insulation and single-glazed metal windows — not to tenant lifestyle. Dillon LJ emphasised that where the **structure itself is inherently prone to producing condensation**, the landlord cannot escape liability merely because different tenant behaviour might have reduced its severity. The principle: if the defect in the structure is a **concurrent or dominant cause**, the landlord remains liable even if tenant behaviour contributed. **Southwark LBC v McIntosh [2002] 1 EGLR 25** Reinforced *Quick*: a landlord cannot defeat a fitness claim solely by evidence of tenant lifestyle (inadequate heating, failure to ventilate) where the property's thermal envelope is inadequate. The judge held that a reasonable tenant who heats and ventilates normally should not suffer damp; if normal occupation causes condensation, the property is structurally defective. **Lee v Leeds CC; Ratcliffe v Sandwell MBC [2002] 1 WLR 1488 (CA)** Chadwick LJ distinguished the Article 8 ECHR route from the LTA implied term route, but confirmed that condensation arising from inadequate construction does not become a tenant's problem merely because ventilation behaviour was suboptimal. However, the Court did note that under the then-applicable implied covenant (s.11), purely lifestyle-caused damp with no structural element would not engage the landlord's repairing obligation. This remains relevant to s.9A in identifying the dividing line. **Homes (Fitness for Human Habitation) Act cases post-2019** County court decisions (non-binding but instructive) have consistently held that where: - an extractor fan is defective or absent; and/or - windows are single-glazed and below modern thermal standards; these are **structural or installation defects** that independently generate the conditions for mould, and the landlord cannot rely on the s.9A(5) lifestyle exemption unless it can demonstrate that a tenant behaving **reasonably** would not have suffered the same outcome. --- ### Applying This to the Facts **The defective extractor fan** is highly significant. It is a fixture forming part of the structure/installation of the dwelling. A landlord has an implied obligation under s.11 LTA 1985 to keep installations in repair, and under s.9A unfitness encompasses inadequate ventilation (s.10(1)(d): "adequate natural lighting"). A non-functional extractor fan in the bathroom directly creates excess moisture that migrates. The tenant does not need to prove this was the *sole* cause; under *Quick*, concurrent structural causation suffices. **Single-glazed windows** are material evidence on the HHSRS excess cold hazard and on the thermal conditions that generate condensation. Under HHSRS guidance, single glazing in a bedroom let after 1985 is a recognised deficiency. The landlord's surveyor ignores this in attributing cause entirely to lifestyle. **The lifestyle attribution** in the surveyor's report is the kind of evidence courts have repeatedly scrutinised. The questions that must be answered are: 1. Would a **reasonably behaving tenant** — one who occasionally dries laundry indoors and keeps windows closed in cold weather — have suffered this mould if the fan worked and the windows were double-glazed? If no, the structural defects are causative. 2. Is the mould *behind the wardrobe* consistent with tenant lifestyle causation? Mould in concealed locations, particularly at thermal bridges (cold walls behind furniture), is a recognised indicator of **structural cold bridging**, not lifestyle, as the tenant is not controlling ventilation behind fixed furniture. The location behind the wardrobe is forensically important and should be the focus of expert evidence. It aligns strongly with the *Quick* principle. --- ### Practical Evidential Steps for the Tenant 1. Commission an independent HHSRS survey identifying the extractor fan as a damp/mould hazard and the single-glazed windows as an excess cold hazard. 2. Obtain thermal imaging evidence of cold bridging at the affected wall. 3. Establish documentary evidence of reporting the defective extractor fan and any landlord failure to repair. 4. Rely on the landlord's own surveyor's admission that mould exists — that admission is the tenant's primary evidence of unfitness. The landlord's surveyor report, absent engagement with the structural defects, is unlikely to discharge the s.9A(5) burden on a balance of probabilities in light of the *Quick* line of authority.