"Condensation, resident lifestyle" is, in the words of the Federation of Damp, the cheapest answer a landlord can be given. From 30 November 2026 it will also be the most dangerous one to give without evidence. Phase 2 of Awaab's Law extends fixed response timescales to seven more hazard groups [1], government-commissioned research has found that damp and mould are the cases landlords struggle most to get right [2], and the courts have twice in recent weeks sided with tenants whose surveyors traced mould to the building rather than the occupants [3][4].
This article sets out what a competent damp and mould investigation in Kingston upon Thames must record, whether the home is a council flat in Norbiton, a 1930s semi in New Malden, a Victorian terrace in Surbiton or a riverside apartment, and how that evidence is used when a dispute follows.
Key Takeaways
- Awaab's Law Phase 1 has applied to social landlords in England since 27 October 2025; Phase 2 starts on 30 November 2026 and adds excess cold, excess heat, falls, structural collapse, fire and explosions, electrical hazards and domestic hygiene, plus all emergency hazards except overcrowding [1].
- MHCLG-commissioned research by Verian found damp and mould cases were harder than emergency hazards because root causes had to be identified, and that surveyor shortages limited responses [2].
- In Cummins and Harvey v Heaver the High Court relied on a single joint expert who traced damp and mould to poor thermal performance and moisture ingress, held the property unfit and ordered the works [3].
- A County Court appeal reported on 12 November 2026 ordered a rehearing because a judge had rejected the tenants' only causation expert in favour of lifestyle explanations without explaining why [4].
- A proper investigation measures, maps and explains causation; it does not assume.
What Awaab's Law Phase 2 changes
Awaab's Law is section 10A of the Landlord and Tenant Act 1985, inserted by the Social Housing (Regulation) Act 2023. It imposes fixed timescales on social landlords in England to investigate and remedy hazards. Phase 1, covering damp and mould and all emergency hazards within 24 hours, has been in force since 27 October 2025 [1].
Phase 2 begins on 30 November 2026 under the Hazards in Social Housing (Prescribed Requirements) (England) (Amendment) Regulations 2026, with MHCLG guidance published on 13 July 2026. It extends the fixed timescales to seven further hazard groups:
All emergency hazards except overcrowding are also covered [1]. Excess cold and structural issues overlap heavily with damp, so the demand for competent building-fabric investigation will rise sharply.
What the Phase 1 research found
The Ministry of Housing, Communities and Local Government commissioned Verian to carry out "test and learn" research on Phase 1, drawing on interviews with tenants and focus groups with social landlords across England. Reported on 20 October 2026, the findings were that emergency hazards were generally manageable within the 24-hour window, but damp and mould cases were harder because landlords had to identify root causes and coordinate remedial work; workforce shortages, particularly of surveyors and specialist trades, limited responses; and organisations could focus on demonstrating compliance rather than resolving problems in residents' homes [2].
The Federation of Damp's founder, Sam Fitzgerald, said: "Damp surveying isn't a regulated profession. Anyone can call themselves a damp surveyor with no training at all." He warned that conclusions are often reached before a surveyor visits, that "Condensation, resident lifestyle" should be evidenced rather than assumed, and that "Responding quickly and responding correctly are two different things, and only one of them is being counted" [2].
Why lifestyle diagnoses are failing in court
Cummins and Harvey v Heaver
In Cummins and Harvey v Heaver [2026] EWHC 1671 (KB), the High Court considered a mid-19th-century house near Chichester let on an assured shorthold tenancy since September 2020. The court relied on the uncontested report of the single joint expert, Mr Badham, who found damp and mould in every habitable room and both roof spaces, caused by poor thermal performance and active moisture ingress, together with chrysotile asbestos in a cracked and water-penetrated textured ceiling coating, an unsatisfactory electrical report since resolved, an active rodent infestation, a damaged septic tank vent pipe and heating defects. Remedial works were estimated at £39,150 excluding VAT over four to six weeks [3].
The court held the property unfit for human habitation under section 9A of the Landlord and Tenant Act 1985 and that the damp alone was sufficient. On the landlord's argument that the tenants were to blame, the court held that the "wholly or mainly attributable" exemption in section 9A(3) has a high threshold: "tenant default that is a real but secondary cause of unfitness does not meet it". Specific performance of the expert's works was ordered, although a decant was refused [3].
The Pembrokeshire appeal
In an appeal reported on 12 November 2026, His Honour Judge Beard, sitting in the County Court at Swansea, ordered a rehearing of a claim against Pembrokeshire County Council. The tenants' surveyor, the only causation expert, had found thermal bridging and insulation deficiencies. The trial judge had preferred clothes drying, limited ventilation and clutter without explaining why those matters displaced the expert's opinion [4].
The message for landlords and surveyors in Kingston is the same from both courts: a lifestyle explanation is an allegation that must be proved with building evidence, not a default.
What a proper damp and mould investigation records
A competent investigation produces evidence that a court, an ombudsman or a regulator can follow. At minimum it should include:
- An HHSRS hazard assessment for damp and mould growth, and from 30 November 2026 for excess cold, so that severity is rated rather than described.
- Moisture profiling with calibrated electrical moisture meters at set heights and locations, tabulated and dated, with salts analysis where rising damp is suspected.
- Surface and dew-point temperatures and relative humidity readings, ideally logged over days, to show whether condensation forms at cold spots.
- Thermal imaging of external walls, window reveals, floor-wall junctions and roof voids to locate cold bridges and missing insulation.
- Ventilation performance, including extract-fan flow rates in kitchens and bathrooms, trickle vents and window operation.
- Building-fabric defects: failed pointing and render, bridged damp-proof courses, roof and gutter failures, blocked sub-floor vents, defective flashings and leaking services.
- Occupant factors recorded fairly: heating pattern, drying arrangements, furniture against external walls, with their contribution weighed rather than assumed.
- A causation statement identifying the main cause and secondary contributors, and explaining why alternatives do not fit the pattern of damp.
How the evidence is used in disputes
In the social sector the report drives the Awaab's Law timescales and will be examined by the Housing Ombudsman and the Regulator of Social Housing. In the private sector it founds or defends claims for disrepair under section 11 and unfitness under section 9A of the Landlord and Tenant Act 1985.
Where a claim is litigated, the surveyor becomes an expert witness, often a single joint expert, bound by CPR Part 35: an overriding duty to the court, a statement of truth and full answers to written questions. From 30 November 2026 the RICS professional standard Surveyors acting as expert witnesses, 5th edition, also requires disclosure of AI use and of reliance on one instructing party, and a clear statement of assumptions and alternative conclusions [5]. The occupant-factor alternative is the obvious one to address head-on.
What Kingston homebuyers should expect from a survey
An RICS Level 2 Home Survey will identify visible damp, take spot readings and flag the need for further investigation. A Level 3 Building Survey goes further, with more extensive readings, inspection of roof voids and sub-floors where accessible, and advice on cause and remedy. Neither is a full damp investigation of the kind described above, but a good Level 3 report will say clearly when one is needed, which is common in Kingston's older housing stock and in flats with poor ventilation.
Frequently asked questions
Does Awaab's Law apply to private landlords?
The fixed timescales in section 10A currently apply to social landlords in England. Private tenants rely on the fitness-for-human-habitation covenant in section 9A, which the courts are applying firmly, as Cummins and Harvey v Heaver shows [3].
Can a landlord blame the tenant for condensation?
Only where the unfitness is wholly or mainly attributable to the tenant's default. The High Court has held that tenant conduct which is a real but secondary cause does not meet that threshold [3].
What instruments should a damp investigation use?
Calibrated moisture meters, surface and air thermometers or data loggers for temperature and humidity, and a thermal imaging camera, with results recorded and dated.
Who can carry out a damp investigation?
Damp surveying is not a regulated title. Choose a chartered building surveyor or a specialist with recognised training, and ask how causation will be evidenced before instructing.
Conclusion
Awaab's Law Phase 2 widens the hazards social landlords must act on from 30 November 2026, and the research behind it shows damp and mould are already the hardest cases to get right. The courts, meanwhile, are refusing to accept lifestyle explanations that are not backed by building evidence.
For landlords, tenants and buyers in Kingston upon Thames the next steps are practical: commission a damp and mould investigation that measures and maps rather than assumes, insist on a written causation statement, keep dated records of readings and photographs, and where a dispute is likely, make sure the surveyor is working to CPR Part 35 and the incoming RICS 5th edition standard. Correct diagnosis is faster in the end than repeated visits to the wrong problem.
References
- Awaabs Law Phase 2. mouldexperts.org.uk.
- Surveyor Shortages Threaten Effective Awaabs Law Compliance. buildnews.co.uk.
- Unfitness in the High Court. nearlylegal.co.uk.
- Circuit Judge Orders Fresh Hearing in Housing Conditions Case After Allowing Appeal by Tenants Over Expert Evidence. aberdareonline.co.uk.
- Surveyors Acting as Expert Witnesses. rics.org.
