B3 Living Limited (202012594)

REPORT

COMPLAINT 202012594

B3 Living

23 December 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. The complaint is about the landlord’s handling of the residents’ reports of damp and mould in their prospective property.

Background and summary of events

2. The residents were prospective shared owners of the landlord. They have been assisted by a representative throughout their complaint. All parties will be referred to as ‘the resident’.
3. The landlord offered the resident the property on 16 September 2020. It asked her to provide a £500 reservation fee if she wished to proceed with the purchase. It said the fee was non-refundable.
4. On 26 November 2020, the resident advised the landlord that she had instructed her solicitors that she did not want to proceed with the purchase.
5. The resident wrote to the landlord on 10 December 2020. She requested it refund her deposit and reimburse the solicitor fees she had incurred in relation to the purchase of the property. She said she felt she had no other option but to withdraw from the purchase. She said when she first visited the property on 4 September, she found damp in a cupboard, and mould on the walls and carpet. She said the landlord advised it would remove the carpet, dry the cupboard, and redecorate the walls. She revisited on 29 September and noted that the landlord had completed the work it said it would. She said during the visit the landlord “mentioned that there was some damp in a kitchen cupboard, but it was not said in a way that caused [her] alarm”. She said she contacted the landlord on 6 and 10 November, to see whether she could visit again to check the mould. She said she visited on 17 November and found damp in many parts (including the corners of the kitchen cupboards, and corners of the skirting boards). She said she asked the landlord to call her the following day to discuss the matter, but it did not. She said she visited again on 23 November and found further damp and mould. She said she believed the damp was an extensive problem and did not think the flat was fit for living in. She said the landlord had done little to remedy the issue, and she had little confidence it would have resolved it properly. She said she was not in control of the issue and did not think it was fair to pay the deposit and solicitors fees.
6. The landlord emailed the resident on 18 December 2020. It said following communication with its surveyor and contractor, it was confident there were no inherent problems with the construction of the property. It said the property was certified as complying with the relevant building regulations and statutory requirements by building control and the warranty provider. It said the moisture which had caused the mould, was a result of the property drying out. It explained that the drying out process for new builds took time and was affected by the ambient weather, and occupation of the property. It said the property had been unoccupied for a long period of time throughout autumn and winter which had amplified the issues. It said its contractor was handling the issues at the property, “albeit…not as swiftly as [the resident] may have hoped for”. It said the presence of moisture within the property was a transitory situation, and common to all new builds. It acknowledged that its communication had not been satisfactory and apologised. It said although the deposit was non-refundable, it would return it as a gesture of goodwill. It said it was unable to refund her solicitors fees as the property was constructed to the required standards, there were no latent defects, and the moisture accumulation was a result of the standard construction and drying out process.
7. The resident emailed the landlord on 21 December 2020. She said it had not explained why it did not take action to address the excess moisture once it became aware of the issue. She said it did not handle the matter correctly, or in a timely fashion which led to extensive mould growth. She asked it to reconsider reimbursing her solicitor’s fees. She said if the landlord had initially ensured all doors were opened, and placed dehumidifiers, “this would have most likely resolved this problem”. She said although the landlord “attempted to rectify the symptoms of damp” it did nothing to address the cause. She said that although moisture may have been common in new builds, mould growth was not. She said the landlord’s unsatisfactory communication with her had led to a lack of trust. She explained what she found on her visit on 17 November. She said she did not think she should be responsible for paying the solicitors fees as the issue could have been avoided if the landlord had taken more prompt action.
8. The landlord emailed the resident on 23 December 2020. It said it did take action to address her reports of mould from 4 September. It said it asked it contractor to ensure background heat and ventilation were in place. It said its contractor could have responded, and acted quicker, but their actions were in accordance with their contractual requirements. It said it did not believe it was responsible for the resident deciding not to proceed with the purchase of the property. It offered her a goodwill gesture of £250 in recognition that its action to address the condensation was not as swift as it would have liked.
9. Following contact from the resident, this Service emailed the landlord on 14 March 2021. We asked it to confirm the resident’s complaint status. The landlord then advised the resident that its response from 23 December 2020 was its stage one complaint response.
10. The resident escalated her complaint on 6 April 2021. She said her email on 21 December 2020 set out why she was dissatisfied with its stage one complaint response. On 5 May 2021, the resident asked the landlord when it would provide its stage two response.
11. The landlord issued its stage two complaint response on 6 May 2021. It apologised for its delayed response. It said a surveyor had confirmed there were no inherent construction issues at the property. It said the surveyor also found that the moisture and mould were the result of condensation caused by the drying out process. It said although its actions were not as swift as they should have been, “all matters relating to this were successfully and satisfactorily remediated to leave the property safe and habitable.” It concluded by explaining how the resident could refer her complaint to this Service if she remained dissatisfied.
12. In the resident’s correspondence with this Service on 26 September 2021, she explained that she was dissatisfied the landlord delayed issuing its stage two complaint response.

Assessment and findings

13. The landlord’s compensation policy sets out that it can offer residents compensation or a goodwill gesture when there has been severe inconvenience, or for a resident’s time and trouble. The amount offered for inconvenience is at the landlord’s discretion.
14. The landlord is required to maintain and repair the structural parts of the building in line with the resident’s potential lease agreement. This obligation also includes carrying out repairs to stop water entering the property which may cause rising or penetrating damp.
15. The landlord’s complaint policy sets out that it will issue its stage two complaint response within 20 working days.
16. The resident visited the property on 4 September 2020, and reported concerns with damp and mould. She reattended 29 September and noted that the landlord had taken steps to resolve the issues identified. She did not report any concerns on 29 September, but noted that there was mould in a cupboard. She attempted to contact the landlord in early November. She reattended on 17 and 23 November, and found that the situation had worsened. She advised the landlord on 26 November that she would not proceed with the purchase.
17. The resident asked the landlord to refund her deposit and reimburse her solicitor’s fees. She said its lack of action had made matters worse causing her to withdraw from the purchase. The landlord acknowledged that its communication had been poor and refunded her deposit. However, it said it would not reimburse her fees as the property had no latent defects, was constructed to the required standards, and the moisture was due to the drying out process. Nonetheless, on 23 December 2020 it offered her a goodwill gesture of £250 as it acknowledged that its action to resolve the issues was not as swift as it would have liked.
18. In total the landlord offered the resident £750. It acknowledged its poor communication, and that it had not completed remedial work promptly. The offer was a reasonable amount as although the landlord’s actions would have undoubtedly caused the resident distress and inconvenience, its shortcomings were over a short period of time.
19. The landlord demonstrated that it had taken steps to resolve the issues the resident had highlighted by carrying out work before her visit on 29 September 2020. When the resident reported further concerns on 17 and 23 November, although there is no evidence of the landlord acknowledging her reports, and reassuring her that it would take relevant action, as it should have, it was not given a significant period to resolve the issues before she withdrew from the purchase. The landlord also provided clear and detailed explanations of why the moisture/mould had occurred. It was transparent, and attempted to reassure her that the issues she had identified occurred when new builds were going through their drying out process.
20. Ultimately, it was the resident’s decision to accept the property in its condition, and to withdraw from the purchase. The landlord was not obligated to refund the deposit, however given the understandable concern about the condition of the property together with the slow response it was appropriate for it to do so.
21. Any costs incurred by a potential purchaser are at their own risk. This is part of the property buying process as there can be various reasons why a sale does not proceed. This is part of the principle of ‘buyer beware’ and any claim for damages to recover the costs would require legal action through the courts to determine if the landlord was liable. In terms of the complaint procedure, there was no specific, independent evidence on file that the landlord has misled the resident when they were in the process of buying the property. The landlord provided evidence to demonstrate the appropriate regulations had been met and that there were no latent defects in the property related to the condensation. Instead, the dispute has arisen from different perspectives on whether the condensation is something that can be overcome, and the landlord’s slow response.
22. Nevertheless, the landlord used its discretion to refund the non-refundable deposit and offer the additional £250 goodwill gesture. This was a reasonable offer of redress for the failures the landlord had identified in its delayed response.
23. The Ombudsman’s Guidance on Remedies suggests:

“Awards of £250 to £700 – Remedies in the range of these amounts may be for cases where the Ombudsman has found considerable service failure or maladministration, but there may be no permanent impact on the complainant.”

24. Therefore, the landlord’s offer of £250 (or £750 if the refunded non-refundable deposit is taken into account) is in line with the Ombudsman’s guide.
25. The resident also remained dissatisfied that the landlord delayed issuing its stage two complaint response. The landlord took 21 working days to produce its response. Although it did not act within its target response timeframe of 20 working days, this was not a significant delay and the apology was a reasonable response.

Determination (decision)

26. In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.