Mould, Damp and Landlord Liability - Who Is Responsible for Damage in a Rental Property?

Mould and damp are common sources of dispute between landlords and tenants. While the presence of mould may initially appear to be a relatively minor maintenance issue, persistent damp or mould can cause significant damage to a property and, in appropriate circumstances, raise questions of contractual, statutory and delictual liability. 

The difficulty is that responsibility cannot be determined merely by establishing that mould is present. The underlying cause of the moisture, the terms of the lease, the parties’ respective obligations and whether the landlord was given an opportunity to remedy the problem will all be relevant. 

The distinction between damp and mould is therefore an important starting point. 

Damp and Mould 

Damp refers broadly to the presence of unwanted moisture in a building. It may arise from structural defects, leaking pipes or plumbing, defective waterproofing, roof leaks, rising damp or water entering through external walls or other parts of the building. 

Mould is fungal growth which develops in the presence of moisture. It may therefore be associated with an underlying damp problem, but can also arise from condensation and excessive humidity, particularly in areas such as bathrooms, kitchens and laundries. 

The distinction is legally significant. Where mould is caused by a leaking pipe or defective roof, for example, treating the visible mould without addressing the underlying defect will not resolve the problem. Conversely, where mould results primarily from condensation and the tenant’s failure to ventilate the premises properly, the position may be different. 

The question is consequently not simply whether mould exists, but what caused it and which party was responsible for addressing that cause? 

The Landlord’s Responsibilities 

The Rental Housing Act 50 of 1999 (“the Rental Housing Act”) places obligations on landlords in relation to the condition and maintenance of rental premises. 

A landlord is required to provide a dwelling that is reasonably suitable for the purpose for which it is let and to maintain the existing structure of the dwelling. The Act further recognises the landlord’s responsibility for maintaining the property where damage affects the tenant’s beneficial occupation of the premises. 

The regulations applicable to rental housing similarly impose maintenance obligations concerning, among other things, the structure of the dwelling, its walls and roof, plumbing and other essential systems. 

These obligations are particularly relevant where damp arises from a structural defect. Rising damp, penetrating damp, water ingress through a defective roof or leaking plumbing will generally be matters which require the landlord to investigate and, where the landlord is responsible for the underlying defect, remedy. 

The fact that the resulting manifestation is mould does not necessarily alter the landlord’s responsibility for the underlying problem. 

A landlord should therefore be cautious about treating mould as merely a cleaning issue where there are indications that it has been caused by a defect in the property. 

The Tenant’s Responsibilities 

The Rental Housing Act does not, however, place all responsibility for the condition of a rental property on the landlord. 

Tenants are required to maintain the dwelling in a clean, tidy and safe state of repair and to use the property and its facilities reasonably. They are also required to notify the landlord of defects or damage which may cause further damage to the property. 

This becomes particularly relevant in cases involving condensation. 

Normal household activities such as bathing, showering, cooking and drying clothes generate moisture. Where a tenant fails to ventilate areas adequately or otherwise allows excessive moisture to accumulate, that conduct may contribute to the development or worsening of mould. 

The tenant may also be responsible where damage results from a failure to report a defect within a reasonable time. For example, if a tenant becomes aware of a leaking pipe but does not notify the landlord and the resulting water damage subsequently becomes significantly worse, the tenant may potentially bear responsibility for the additional damage caused by that failure. 

The tenant’s obligations therefore operate alongside, rather than in opposition to, the landlord’s maintenance obligations. 

The Lease Agreement Matters 

The parties’ lease agreement will usually provide the first point of reference when determining their respective responsibilities. 

A lease may expressly allocate particular maintenance and repair obligations to the landlord or tenant. It may, for example, require a tenant to keep certain areas clean, adequately ventilated and free from mould, while retaining responsibility for structural defects and repairs with the landlord. 

The condition of the property at the commencement of the tenancy may also be important. The Rental Housing Act provides for a joint inspection by the landlord and tenant before occupation, allowing defects and damage to be identified and recorded. 

This becomes particularly important where a dispute later arises over whether damage was pre-existing, resulted from fair wear and tear, arose from a structural defect or was caused by the tenant. 

A landlord seeking to hold a tenant responsible for damage will generally need to distinguish damage caused by the tenant from ordinary deterioration associated with the use of the property. 

Likewise, a tenant alleging that a landlord has failed to maintain the premises should be able to demonstrate what was reported, when it was reported and what steps, if any, the landlord took in response. 

When Can a Landlord Be Liable for Damage? 

The landlord’s obligation to repair a defect and liability for damages arising from that defect are related, but they are not necessarily the same question. 

Where a landlord fails to attend to a defect for which the landlord is responsible, the tenant may have contractual or statutory remedies. In appropriate circumstances, a claim for damages may also arise. 

A delictual claim based on an omission, however, requires more than proof that the landlord failed to act and that the tenant subsequently suffered harm. South African law does not automatically regard every omission which causes loss as wrongful. The circumstances must be considered to determine whether the landlord was under a legal duty to act and whether liability should, in the circumstances, be imposed. 

This makes notice and causation particularly important. 

A landlord who has never been informed of a concealed leak, for example, may be in a materially different position from a landlord who has received repeated written complaints about water ingress and has failed to investigate or repair it. 

Similarly, a tenant claiming damages arising from mould would need to establish a sufficient connection between the landlord’s failure and the loss being claimed. 

The mere presence of mould will therefore not automatically make a landlord liable for every consequence alleged by a tenant. 

What Damage May Be Claimed? 

The potential consequences of damp and mould can extend beyond damage to the building itself. 

Depending on the circumstances, a tenant may allege damage to furniture, clothing or other belongings, loss of use or enjoyment of the premises, costs incurred as a result of the condition of the property, or health-related harm. 

Each category of loss requires its own evidentiary foundation. 

For example, where personal belongings have allegedly been damaged by damp, the tenant would need to establish both the damage and its connection to the damp for which the landlord is responsible. 

Health-related claims require particular caution. The existence of mould does not, without more, establish that a particular illness or medical condition was caused by exposure to that mould. Medical evidence and evidence of causation may therefore be necessary where a tenant seeks to recover damages arising from alleged health consequences. 

The same principle applies to other consequential losses. The tenant must be able to demonstrate the loss claimed and its causal connection to the breach or wrongful conduct relied upon. 

The Importance of Acting Promptly 

Once a landlord receives a complaint concerning damp or mould, the appropriate response is to investigate the underlying cause rather than simply treating the visible mould. This is important not only from a maintenance perspective, but also from a legal and evidentiary perspective. 

Where the landlord promptly investigates a complaint, obtains an appropriate assessment where necessary, carries out repairs and keeps a record of the steps taken, there is a clear evidentiary trail demonstrating how the complaint was addressed. 

Conversely, a failure to respond to repeated complaints may become significant if the condition of the property deteriorates and the tenant subsequently seeks to hold the landlord responsible for resulting losses. 

Tenants should similarly report damp, leaks and other defects promptly and preferably in writing. Photographs, inspection reports and correspondence can be important in establishing when a problem arose, whether it was reported and how it developed. 

Conclusion 

The presence of mould or damp in a rental property does not, by itself, determine who is legally responsible. 

Where the underlying cause is a structural defect, water ingress, defective plumbing or another matter falling within the landlord’s maintenance obligations, the landlord may be required to remedy the problem. Where the condition is caused or materially worsened by the tenant’s conduct, or where a tenant fails to report a defect which subsequently causes further damage, responsibility may fall differently. 

For landlords, the key consideration is not simply the removal of visible mould, but identifying and addressing its underlying cause. For tenants, timely notification of defects and proper documentation of complaints are equally important. 

Where the failure to address damp or mould results in damage to the property or other loss, the question of liability will ultimately depend on the applicable lease, the parties’ statutory and common-law obligations, the cause of the problem, the landlord’s knowledge of it and the evidence establishing the resulting loss. 

Contact an expert at SchoemanLaw Inc in Cape Town or Paarl for assistance with your legal needs. 

https://schoemanlaw.co.za/services/property-and-conveyancing/  

Kerri Stewart | SchoemanLaw Inc  

Attorney