The Expertise of an Expert Witness

What does it take to be an expert witness?

An expert witness duty is to the court and not the client.

An expert witness duty is to the court and not the client.

I’ve been doing expert witness work and writing part 35 compliant reports for a number of years now relating to construction defects and disputes between landlord and tenant, the latter cases usually related to damp and mould. However, we’ve had two cases relatively recently that have led me to carefully question any potential case that comes in. When it comes to this work I’ve always limited myself to my particular area of expertise, which broadly speaking is building pathology, however, through the course of doing this work I’ve come to realize that many surveyors are simply expert at being an expert. What do I mean by this?… Quite simply I’ve found that  often any expert acting on behalf of the other party often has no expertise in building pathology, rather they have a knowledge and expertise in producing part 35 compliant reports and a knowledge and understanding of the civil procedural rules and often they’ll act in any case as expert witness, irrespective of the matter under dispute. The last time the opposite party insisted on appointing his own surveyor at great expense, the net result was that his surveyor simply indicated to me that he agreed with everything I’d reported and discussed on site. What some clients simply don’t get is the impartiality with which one has to act as an expert witness and on that occasion the other party could have saved himself a great deal of money. I would generally advise all parties to appoint a single joint expert, rather than insisting on their own, because it simplifies and streamlines the process and makes it far more cost effective.

But what if the expert favours one party?

I live in the real world so I won’t pretend this can never happen, but quite simply it shouldn’t! So long as both parties do their research and jointly agree that the SJE has the relevant expertise and has no conflict of interest then a single joint expert should always be your preferred option. Returning to my earlier point on expert experts, remember to make sure that expert actually has a focussed area of expertise related to the matter in dispute, as opposed to simply understanding court procedure.

What does expert witness work involve?

What I’ve come to learn over time is that acting as an expert witness is incredibly time consuming. It starts with a desktop review of all relevant paperwork and any relevant findings from that desktop review need writing up. Then of course there’s the site investigation work and whilst you may think that all these cases must be technically complicated, that isn’t the case at all, they have the same frequency of simplicity or complexity as any other case we work on, some cases being so simple that you question how on earth a dispute ever arose.

Needless to say, the final reports can be quite lengthy, our reports are generally more than thorough but any expert witness report we produce has to be as detailed and extensive as the facts require it to be; always of course remembering that the courts will be using the final report to enable them to reach a decision. I always retain a view that non-technical legal experts have to understand the technical issues and so reports are always heavily illustrated to facilitate that requirement.

Even on production of the report, the work doesn’t necessarily stop there because occasionally the opposing parties will then come back with a series of questions or clarifications required, which have to be answered.

The dark side of expert witness work

On a relatively recent case I was involved in for a client in the northwest, I reviewed the initial evidence informing my client that on paper he didn’t appear to have a strong case. Nevertheless I was appointed and completed a detailed technical report relating to water ingress in my clients garage. His view being that it was caused by the neighboring garage, whilst of course, his neighbor disagreed. In fact, it was my own clients defective parapet wall that was to blame and the case was proven unequivocally, to the extent of photographing fluorescein dye running in from the parapet wall during a hose test I carried out. Of course I fully expected this because the visual defects were obvious.

On completion of the survey I had a conversation with my client and solicitor at the property and I remember my client stating, “so I’ve paid you for nothing then.” Well actually no, I replied, you’ve paid me to correctly diagnose the defects to enable you to cure the water ingress. I could tell my words didn’t hit home but as any surveyor involved in expert witness work will tell you… sometimes it isn’t about the facts, it’s about the people!

What subsequently transpired was that over a 4-6 week period I was bullied and cajoled by my clients solicitor to change the contents of my report to indicate that in fact the neighbor was responsible; something which I refused to do.

Several months later the client placed a complaint asking for a refund on the survey fee on the basis that it was wrong. This was refused because it was not just factually correct, it was wholly objective and based on proven facts. I was fully confident that no one would counter or overturn the content of that report.

We later found out that the client never used the report but in fact made claims to the other parties solicitor that the report wasn’t ready for the court date as we were changing the contents to indicate that the other party was responsible, something we’d flat refused to do.   Incredibly the other party settled out of court based on this claim. Something confirmed after a conversation with the opposing solicitor. When my own clients solicitor was made aware that I was aware of this fact, the claim for a refund was dropped, though with further veiled and empty threats that should the decision be overturned then we’d be ‘pursued’, whatever that meant.

Three years ago we acted on behalf of a contractor in a similar dispute that involved failure of a calcium sulphate floor screed in a children’s nursery in the West Midlands. The client initially describing the finished report as ‘excellent’ but sending it back to us for a complete rewrite several weeks later when senior management realized that our conclusions meant they’d be responsible for tens of thousands of pounds worth of remedial works. Yes, incredibly our report was returned with several sections re-written with a casual comment that we ‘sign off’ on the changes. Again we refused and were left with a final comment that, “you’ll never work for us ever again.’ A decision we’d already made when we were asked to make those changes. Now don’t let either of these examples lead you to believe that we never find facts in favour of our own client when not acting as SJE, because we frequently do, but we find what we find.

The moral of both these stories is don’t appoint an expert and expect him to act in your favour! When not acting as single joint expert (SJE) I make a point now of explaining to all clients that the technical facts may not necessarily come out in their favour because as an independent expert, our duty is to the court and not to the client!

Fact Vs Opinion

It may surprise you to learn that there is rarely expert opinion in any of the reports we produce. We focus on detailed survey work and collecting objective evidence and therefore all our reports are based on objective facts rather than subjective opinion. Often a huge amount of research goes into linking particular defects with the relevant construction standards so any ‘opinion’ given is based on those standards; if the opposing party disagrees, they are not disagreeing with me, they are disagreeing with recognized British and European standards. On a recent long running case for a client in the East Midlands, the opposing parties expert disagreed with my view that £40k’s worth of timber windows were not fit for purpose. One of the key technical issues being that there was no gradient to the head of the windowsill; not required said the opposing party. Some research later and I provided the information from BS644:2009 which, states that window sills should be, ‘angled with a slope of not less than one in eight ( 7 degrees). As always, fact and research won the day.

Please follow and recommend our blog page:

Building Defects: A legal perspective

Guest Blog Introduction and Biography

In March of this year both myself and Sarah Fox attended the RICS East Midlands CPD conference as guest speakers. I’d not met Sarah at this point and was lucky enough to attend her talk on letters of intent. Quite simply it was possibly the best talk on contract law that I’d ever attended and I was so impressed with Sarah’s knowledge of contract law that I asked if she’d write a guest blog.

Sarah Fox is a construction contracts strategist and author of a series of 500-word construction contracts. She wants the industry to adopt contracts that they can read, understand and use. She uses coaching, talks and workshops to help professionals to write simple contracts and understand complex ones. Her keynote is “Never sign on the dotted line” and you can find out more at http://www.500words.co.uk

Patent and Latent Defects

“Defects will occur in buildings. It is one of the great certainties in construction, the equivalent of death and taxes in life more generally” [1]

Borescope used to locate a latent defect.

Borescope used to locate a latent defect.

Generally a defect is “anything which renders the [works] unfit for the use for which it is intended, when used in a reasonable way and with reasonable care.” [2]

There are two types of defect: patent and latent. Patent defects are defects that are visible or capable of being discovered (observed and observable). Latent defects are not reasonably discoverable and often come to come to light after completion and even after the defects period.

Any client needs to ensure that the works meet the required contractual standards for goods, design and workmanship. This can be done in a number of phases:

During Construction

The contract administrator must identify visible defects and exercise her powers before completion and ensures that issues relating to quality and defects do not wait until the defects period. Depending on the terms of the building contract, the contract administrator may have:

  • the power to issue instructions to require the removal from site of work or materials not in accordance with the contract (JCT 2011 DB clause 3.13.1)[3] or other instructions as appropriate (JCT clause 3.14);
  • the power to require the contractor to open up or test various elements of the works (JCT clause 3.12);
  • a duty not to include in interim certificates the value of works not in accordance with the contract (JCT clause 4.14.1.1);
  • a right for the employer to terminate the contractor’s employment for failure to rectify defects as instructed, provided the works are materially affected (JCT clause 8.4.3);
  • the duty to confirm whether the works are completed to her satisfaction (MF/1 rev 5 clause 13.2);
  • the ability to confirm the performance of the works through testing before and after completion (MF/1 clauses 23, 28 and 35).

Obvious or ‘patent’ defects should prevent the issue of the certificate of completion. Accordingly, the date of completion, all work should conform to the requirements of the contract.

During Defects Period

Patent defect found on new development site.

Patent defect found on new development site.

Building contracts ‘encourage’ the contractor to return to the project and make defects right by allowing the employer to withhold some of the money due to the contractor until the end of the defects period, either a stage payment or retention. In Pearce & High v Baxter, the court said (with some reservations) that the JCT Minor Works wording “can be regarded as giving the contractor a right to make good defects at his own expense, and a licence to enter the property for that purpose.” [4]

After Defects Period

Once the defects period has come to an end, the client can bring a claim for breach of contract for any defects which become patent during the limitation period. The client’s claim is for damages to put it in the position it would have been in if the contractor had carried out the contract properly.

The difficulty is measuring what is an appropriate amount of damages.

 

Referencing

[1]           Article by Harrison Consult quoting Professor Anthony Lavers.

[2]                 Yarmouth v France (1887) 19 QBD 647. See also Tate v Latham [1987] 1 QB 502 where a defect meant the absence of an item essential to complete the works – even if the works were operable without the item.

[3]           There is no power for the contract administrator to instruct when these defects must be rectified as it is for the contractor to plan and perform the works however it chooses. All references in this blog are to JCT 2011 DB unless otherwise noted.

[4]                 [1999] CLC 749 at 751.

Please follow and recommend our blog page:

Legal Costs in Construction Claims

The Need to Keep Costs Proportionate in Construction Claims

Screen Shot 2015-11-27 at 8.17.28 AM

What proportion of the claim value should be spent on recovery?

We’ve taken on a lot of construction claims over the last three weeks and obviously our role is to provide claimants with the evidence that can be used to pursue a claim against their builder. Normally that entails creating a detailed cost and defect schedule since the civil courts like the defendant to be made aware of the exact nature and value of your claim. However, during initial discussions  with our clients we would always advise them to keep costs ‘proportionate’ since you are unlikely to recover costs that the court sees as disproportionate, but what exactly does ‘proportionate’ mean?

Before we get to that point we would make a simple but important observation… A number of years back I required a solicitor for a non-construction related matter and was interested to note that before they accepted me as a client they had me credit checked to ensure that they managed any risk with regard to potential non-payment of my invoice. Makes perfect sense doesn’t it? Similarly we would advise that the first course of action for anyone considering a claim against  their construction company is that you have them credit checked. I recently advised a client of this and we found out very quickly that the potential defendant  was potless. Without this simple check, many thousands of pounds may have been spent pursuing a claim that in all likelihood was never going to be recovered. Isn’t it ironic that a number of law firms have potential clients credit checked but fail to offer the same advice to that same client when considering potential claims against their constructor. Arming yourself with this information instantly allows you to make a more informed tactical decision as to how you pursue your claim. Moreover, once the value of the claim is fully understood and you’ve established legal liability, if you bring a claim and succeed, you can then place a charge on any unencumbered assets, until the debt is satisfied.

With regard to proportionality of costs the legal position on this is more complex than you might imagine and we sought opinion from the excellent firm of construction solicitors that we use and were provided with the following answer…

“This area of the law has changed since April 2013 when the Civil Procedure Rules (“CPR”) changed and solicitors and claimants are still finding their feet.

The new rule will is CPR 44.3(5) and reads:
“44.3(5) Costs incurred are proportionate if they bear a reasonable relationship to:
(a) the sums in issue in the proceedings;
(b) the value of any non-monetary relief in issued in the proceedings;
(c) the complexity of the litigation;
(d) any additional work generated by the conduct of the paying party; and
(e) any wider factors involved in the proceedings, such as reputation or public importance.”
Furthermore, the Overriding Objective has been amended to include reference to proportionate cost:
CPR 1.1
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.

The new test, which effectively reversed the approach taken in Lownds, was summarized by Lord Neuberger as:
“Disproportionate costs, whether necessarily or reasonably incurred, should not be recoverable from the paying party. To put the point quite simply: necessity does not render costs proportionate.”

Presently there is little actual guidance as to how the test will operate in practice and case law will have to be developed in relation to this. However, in the cases that have offered guidance the courts have made clear that they expect parties to be sensible and compromise on small differences. If they do not they will not recover their costs of doing so. If the other party offers a compromise and it is refused, then even if the issue is won on liability you will probably end up paying their costs on the issues offered for compromise.

The only real steer I can give you is if you are paying more in costs against an item of claim than you are claiming, this is likely to be seen as disproportionate. On those items suggest a reasonable compromise on a “without prejudice save as to costs” basis and at least then you can show the court you have tried and that provides your best chance of recovery.

The new world is you can claim it but you may not get your costs. Further, if you are seen as unreasonable, you may end up wining an issue on liability, but having to pay the other side’s costs for it.   Consideration of costs must now be at the heart of deciding to engage in civil litigation. Gone are the days of “if I’m right, the other side will have to pay”. Of course those days never really did exist and a successful party would only usually recover 60 to 70% of their costs if they were successful, but things have now become more difficult and even if you win, if costs are not considered proportionate, you may recover far less or even nothing.”

As you’ll see, there is no simple answer to this question and we have entered an area of law that has not yet been fully tested. The key piece of advice that we would take from this is that you put consideration of costs at the heart of any decision to pursue civil litigation and as always, try everything reasonably possible to resolve matters outside the civil courts. Thankfully, that is precisely what happens with the majority of cases we take on.

Please follow and recommend our blog page:

How Guaranteed is My Construction Guarantee?

The Murky World of Construction Guarantees, Latent Defects & Contractual Claims
Screen Shot 2015-11-17 at 13.22.50

Source: swiga.co.uk

I was prompted to write this blog after a client recently explained to me that her builder recently explained to her that in fact, he had no contractual obligation to correct her work and he was only there to prevent reputational damage.  It is fairly common for builders to make statements that their work is only guaranteed for 12 months and perhaps some of them genuinely believe this. Then on the periphery of any guarantees that are given directly by the builder there are all sorts of insurance policies and schemes that may afford the buyer further protection. The ten year NHBC build mark policy or the 25 year SWIGA guarantee for solid wall insulation systems are both examples of policies that are meant to provide the purchaser with additional peace of mind.

The SWIGA guarantee is particularly interesting and borne of the DECC’s requirement for the EWI industry to provide a 25 year guarantee before rolling out solid wall insulation to the mass market as part of Green Deal or ECO works. It is a requirement that ECO work has a 25 year guarantee. So what about homeowners who are privately funding their SWI installations? Surely they are afforded the same level of protection? Well actually no, it turns out that often they are not. A number of companies are delivering privately funded work without the benefit of the 25 year guarantee that is required for ECO funded work. Buyers may get the system suppliers 5 year guarantee on materials but are often told that the installer only guarantees work for 12 months. When it comes to solid wall insulation consumers are quite often confused by the contractual arrangements that exist between themselves, the installer, the supplier, the BBA and any other third party who may be providing the 25 year guarantee. They quite literally do not know who to turn to first when something goes wrong, particularly when they find that their installer is being unresponsive or obstructive in dealing with matters in a reasonable manner. I will focus on one case in particular because the principles could equally apply to any buyer of construction works. The buyer in this particular case bought a very expensive SWI system that failed within weeks of purchase. It was clear that the system had been poorly installed to such an extent that it would not have had BBA approval. They were then shocked to find that they did not have a SWIGA guarantee and the installer was not registered with SWIGA to install this product. Despite this fact, the installer had been heavily recommended by the system supplier. The system supplier rightly pointed out that they have no contractual relationship with the end user and that their relationship lies with the installer and even after admitting that the installation had non-standard components refused to intervene or take action with the installer for not installing a fully approved system, that in all likelihood will not now have BBA approval. If a complaint is made to SWIGA then they would generally direct the designer to carry out an investigation but in this case the installer is playing both poacher and gamekeeper and being very selective about which elements of failure are being investigated. They also refuse to answer a number of written detailed questions that have been put to them by the end user.  This can occasionally happen and perhaps potential defendants want to commit as little as possible to written record but I’m sure that the courts would see this as unreasonable behaviour.

 You should give your constructor or installer reasonable opportunity to understand the scope and nature of your claim and further opportunity to correct it and again, you may want to seek professional advice with regard to what constitutes a reasonable standard for remediation work. In this particular case, we do not feel that slapping extra base coat and topcoat over an existing silicone top coat in a system that is already exhibiting moisture blisters, is an acceptable or reasonable long term solution. Moreover, we feel sure that this ‘solution’ would not meet with BBA approval.

We are of the opinion that the installation is negligent and only complete removal and re-application of a system from scratch under heavily supervised conditions will solve this problem. In the event that the installer doesn’t agree and refuses to acknowledge the defects  then what are the options for this end user? A purchaser who now understandably wants the benefit of a 25 year year guarantee that is rolled out to the mass market.

Firstly, they have to accept that they don’t have a SWIGA guarantee and the lesson learned should be that private clients should insist on a 25 year guarantee before signing up for having solid walled insulation installed. You’ll find that there’ll be no arguments from the installer if business depends on it but I think it is a rather large loophole in the process and damaging to the industry that they would not afford the same level of protection to private buyers of these systems. We can discuss the value of different guarantees but these are expensive systems and I would recommend a 25 year guarantee, if for no other reason than to guard against contractor insolvency.

Secondly, the purchaser has a contract with the installer, if they do not have a written contract then terms are implied. Unless a contract is executed as a deed then it is a simple contract and any claims for breach of contract must be commenced within 6 years of the date from which the cause of action arises. (12 years when the contract has been executed as a deed)

Contractual claims normally relate to latent or patent defects, which generally give rise to claims under breach of contract. However…  it is not unusual for buyers to discover latent construction defects many years after time limitations have lapsed and where latent defects are found outside of the 6 year period for breach of contract, then clearly this presents a problem. However if you suffer damage arising from negligence then the cause of action arises when the claimant suffers damage (when the defect appears)  rather than when the breach of contract occurred. (Latent Damage Act 1986). The complexity comes from the fact that damage is suffered from the defect occurs, rather than when it is discovered by the client. Thankfully negligence claims are not time barred provided that the buyer instigates proceedings within 3 years of discovering the defect.  That may not be as rosy at it initially sounds since all negligence claims must be commenced within 15 years of the contractual breach. Still, I hope that  any buyer of construction services realises that the level of contractual protection extends well beyond the 12 month guarantee that many builders say or think they offer, potentially up to fifteen years for tortious claims.

Be warned that contractual rights do not transfer to subsequent building owners and any protection that would have been afforded to the original buyer under contractual terms and conditions will not apply and subsequent loss would be regarded by the courts as pure economic loss.

Whilst I advise all clients to explore all reasonable options to resolve disputes without referral to the courts, very occasionally court action is inevitable. Hope for the best and prepare for the worst is my advice, and with this in mind you should always keep meticulous records of all transactions and communications with your builder. The Civil Courts will always look to see that you have done everything that could reasonably be done to avoid court action and I would always advise that you try to keep legal and professional fee’s proportionate to the value of your claim since even if you are successful then any costs awarded are likely to be proportionate to the value of your claim. You are highly unlikely to recover £10k in costs on a claim also valued at £10k.

You will often need an independent professional report fully detailing the defects and the cause of those defects because the Latent Damage Act requires that you have “the knowledge required for bringing an action for damages in respect of the relevant damage” this means knowledge “of the material facts about the damage in respect of which damages are claimed,”  and you are also required to prove “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence.”

If you have evidence that your EWI system was installed negligently and can prove it, as I believe the client does and can, in this particular case, then in fact they will have potential redress to the civil courts for another 15 years. A sobering thought for any other installer who insists that they have no contractual obligation to correct defective construction works. However, this is currently a fairly straight forward claim for damages under breach of contract and even the six year protection afforded will not be seriously tested since the system has already failed due to a high number of  patent and latent defects.

If we are required to intervene on these cases then we work with an excellent construction lawyer who is also a Chartered Quantity Surveyor, so that simplifies and shortens any technical discussions once the site investigation is completed, which can a real benefit in moving the issues forward quickly and cost effectively.

Please follow and recommend our blog page:

Training in Damp Investigation and Remediation

Why chartered building professionals need their own supplementary damp training qualification and why Housing Providers should have their staff trained. 

Damp Training

Damp Training

We delivered another 4 hour lecture to undergraduates at Coventry University on November 23rd to supplement their academic learning with pragmatic site experience and to teach them a damp investigation process that can be used throughout their careers. Coventry University run one of the best RICS accredited building surveying degree courses in the UK and their statistics show that they are now one of the leading universities in the UK  for student satisfaction. We believe passionately that future generations of chartered building professionals should not be deferring specialist damp survey work to a damp proofing industry who are significantly less qualified than they are and hopefully drive home the message by using humour to make a serious point. We offered course attendees our D.A.F.T qualification, or ‘Damp and Fungas Technician,’ because we thought that after attending a short course they deserved letters after their name to show that they were damp specialists. Unsurprisingly, there were no takers but we are hopefully influencing the next generation of chartered surveyors to not defer survey work because in fact, they themselves are the future experts in this field. Building pathology is a core building surveying skill and you cannot practise isolated elements of pathology without first having a detailed knowledge of construction technology. Assessment of the building type is a critical part of any damp investigation and you need a construction related degree to underpin any further specialist knowledge you gain relating to damp investigation and remediation.

A supplementary qualification

We have also believed for some time that Chartered professional bodies should be pro-active in developing a professional supplementary qualification for Chartered building professionals interested in damp investigation and remediation. Perhaps not D.A.F.T but maybe something like D.I.P or Damp Investigation Professional. You would need to be a Chartered professional to gain this qualification so as to ensure you have the pre-qualifying knowledge of buildings and building technology. In our opinion, a comprehensive course could be delivered in two days because no supplementary training in site health and safety would be needed.  I would also suggest that a professional damp report is reviewed to ensure it complies with a recognised survey process and protocols before being awarded the final qualification. This will ensure that professionals have both the knowledge and the full range of diagnostic tools required to carry out a professional damp investigation.

We are in discussions with Chartered bodies to deliver CPD training in damp investigation & remediation and this will possibly start in February of 2016 so please watch out for this. Our aim is to give Chartered professionals, or those working towards chartered status,  the knowledge and confidence to stop deferring ‘specialist’ damp survey work, because in fact, it is not specialist at all, it is a fundamental part of any chartered professionals job role.

Damp Training within Social Housing

We have also been training social housing technical staff in damp investigation and remediation since 2006 and I wrote our course in damp investigation and remediation because as a senior manager working within social housing I saw tens of thousands of pounds being poured down the drain every year on unnecessary damp proofing works caused by incorrect diagnosis of rising damp. Moreover, these costs were repeatable at some future point in time because damp proofing companies have no interest in curing damp, they simply want to sell systems that manage damp. It was always very difficult for me to understand why an industry so concerned with cost efficiencies did not understand that this was one of the biggest potential areas to make savings on the both planned and responsive maintenance costs. Larger social housing providers cannot employ chartered professionals every time they encounter a damp property because the budget would be blown very quickly but they should have a clear focus on curing rather than managing dampness. That being said, many providers have retained our services to deal with the more complex cases or legal disputes relating to alleged disrepair or statutory nuisance.

Many housing providers carry their own technical teams, often HNC or degree qualified in a construction related discipline. We have trained hundreds of industry surveyors since 2006 and have been delighted to see these organisations completely change their approach to dealing with damp properties, they now take responsibility and have a focus on correct diagnosis to ensure they achieve a cure for the damp rather than throwing money away on unnecessary damp proofing works.

Please follow and recommend our blog page:

The Condensation Trap

Is It Possible To Prove That Tenant Behavior Is The Prime Cause of Condensation Damp?

Chronic cold surface condensation in a Wimpey No-fines non-traditional property

Chronic cold surface condensation in a Wimpey No-fines non-traditional property

Many landlords still hold the view that where a diagnosis for condensation damp has been made then the assumption can safely be made that occupants are responsible, but how do you prove an occupancy related issue?
Is it enough to note that the tenant was drying washing indoors, had extractor fans turned off or perhaps they weren’t using their heating due to fuel poverty? The simple answer is no, because none of those facts, however valid, deal with the landlords obligations.

In fact there is no known test that can prove that residents cause condensation damp; rather you can only prove this by a process of elimination and exclusion of all other factors. Landlords need to work backwards and first prove that they have complied with their own obligations; they should first ask themselves three key questions:

1. Is the property dry and well insulated?

2. Have we provided an effective means of mechanical ventilation?

3. Have we installed a fully controllable heating system?

A point often overlooked is the requirement to prove that the building fabric is dry. If it is wet then moisture evaporating from the building fabric can add to internal relative humidity levels. Moreover, wet building fabric has a much-reduced thermal value and so is harder to keep heated above dew point temperature. Wet building fabric can be the prime cause of a secondary condensation damp problem and this is often missed. Opening windows is never a good idea and we have been battling this bad advice for years. Telling residents to open up windows and turn up the heating is clearly counter-intuitive. The requirement for a fully controllable heating system ensures that the resident has the ability to adjust room temperatures in every room.

Poorly insulated bathroom bulkhead. If mould forms here is this an occupancy issue?

Poorly insulated bathroom bulkhead. If mould forms here is this an occupancy issue?

If Landlords are confident that they have complied with all three factors then by a process of elimination they can safely arrive at the conclusion that occupancy issues are to blame. Unfortunately the default position we often encounter is that residents are to blame, even in the absence of any meaningful evidence.

Our own pragmatic view formed on the back of hundreds of damp surveys and numerous expert witness cases is that occupants cause humidity but buildings cause condensation.

Please follow and recommend our blog page: