Damp, mould and construction issues

Published on Tuesday, 01 August 2023. Posted in Case Studies

This dispute concerned damp problems resulting from construction issues on a new build development and the action taken by the managing agent.


The Complaint

The Complainant was a leaseholder occupier and a co-director of the residents management company. He had purchased the ground floor flat of a new development several years previous and soon after moving in noticed the gradual build-up of damp that eventually resulted in mould.  The Complainant reported the issue to the managing agent (the Agent) as soon as it became apparent and over time had dealt with several members of the Agent’s staff who had started but not concluded investigations due to leaving the Agent’s employment. At the time the dispute was referred to the Ombudsman, the Complainant maintained that the issue had not been resolved as water continued to pool under the Property causing rotting and black mould to spread.

The Agent’s response was that the Complainant believed they were responsible for the issue arising as a result of not attending to a blocked gutter in a timely manner which went on to saturate the outside wall of a bedroom. Thereafter, the Agent explained that they had obtained a report from a qualified surveyor which highlighted the issues that needed to be investigated and subsequent remedial works. However, the Agent explained that whilst they were keen to move forward with the action required to be financed through the use of service charges, this had not been approved by the Complainant who remained of the view that their historical inaction about the blocked gutter was the cause of the problem.

The Investigation

The Agent provided their company file which confirmed that following the initial reports of damp, they agreed the use of the service charge funds to take the following actions:

  • Modify the drainage and soakaways outside of the Property to prevent the pooling of water around the base of the Property.
  • Replace the perished roof felt above the Property
  • Install insulation into the bay window outside the bedroom of the Property

When it became apparent that this work had not resolved the issue, the Agent arranged for a report to be produced by a qualified surveyor that highlighted the issues that required investigation and potential remedial work.

The records showed that as there was an impasse in relation to the use of service charges to carry out the recommended investigations, the Agent had arranged a meeting between them, a director of the developer and the leaseholders to discuss the report’s conclusions. The meeting notes showed that the leaseholders agreed that service charges could be used to instal improved insulation to the bay window. The notes also recorded that the surveyor costs for producing the specification for the bay window work was not passed on to the leaseholders as a gesture of goodwill and that the Agent had explained that it was unreasonable to expect any property manager to identify hidden building defects when undertaking inspections.

The Agent’s records went on to evidence that at the time the bay window insultation was upgraded, the Complainant then revealed that there were significant damp issues throughout the entire Property, rather than just the one bedroom previously reported, and that water was coming up through the flooring. The Agent then instructed a further survey where the report indicated a number of potential causes, all of which had been outlined in the previous report:

  1. The Property’s location did not benefit from natural ventilation and/or direct sunlight.
  2. The ground naturally sloped at the corner of the Property which promoted the pooling of water around the base of the property and therefore saturation of masonry (albeit below the Damp Proof Course (DPC)).
  3. The Property could have underlying building defects which would require significant trace and access works to investigate.
  4. The installation of cavity wall insulation may have had a detrimental effect on the Property and, if slumped, promoted the transverse of water across the wall cavity into the internal DPC.
  5. Although resolved, the bay windows did not appear to have been adequately insulated and or sealed during construction.

The Outcome

Having reviewed the high volume of emails sent by the Complainant, the adjudicator concluded that the Agent had communicated with him in both a professional and sympathetic manner. Importantly, the Agent’s communications showed that they had repeatedly tried to obtain an instruction to proceed with the required work but that this was not forthcoming as the Complainant had refused to provide authorisation due to a related historic issue. Overall, it was clear that the Agent’s actions and service was neither the cause of the damp problem nor fell short of the standards expected of TPO members. The complaint was not upheld.