The Investigation and Commencement of Repair (Scotland) Regulations 2026 (the Regulations) introduce specific duties for private landlords in Scotland in relation to damp and mould which come into force on 6 October 2026. These duties build upon existing obligations for landlords under the Tolerable and Repairing Standards and require landlords to investigate reports of damp and mould and commence investigation and any required repairs within set timescales. Whilst the Regulations have been published for some time now (and can be found here).

the guidance that accompanies them has been delayed but was published on 4 September 2026 (and can be found here).

It is this guidance that landlords and the First-tier Tribunal must have regard to when assessing whether or not a property meets the Repairing and Tolerable Standards. In fact, the requirement to have regard to the guidance has been in force since 6 December 2025, but the guidance is now only just available.

What are a landlord’s obligations in relation to investigating damp and mould?

From 6 October 2026, where a private landlord becomes aware that a property may be affected by damp or mould, the landlord must:

  • arrange for a competent person to investigate within 10 working days;
  • provide the tenant with a written summary of the investigation within 3 working days of the investigation concluding;
  • where substantial damp or mould is identified, commence repair work within 5 working days of the investigation concluding;
  • complete the repair within a reasonable time / as soon as reasonably practicable; and
  • take steps, so far as reasonably practicable, to ensure that the property continues to be substantially free from damp and mould.

These are maximum statutory timescales. They should not be treated as permission to wait until the final day if things can reasonably be dealt with sooner.

When do these duties arise?

The trigger is when the landlord “becomes aware” of a potential damp or mould issue. This is wider than simply receiving a formal written complaint from the tenant and could include reports by contractors attending for other works or even through the use of environmental sensors that track temperature and humidity.

Who is a “competent person” to carry out investigations?

The guidance does not prescribe a particular qualification. A competent person is someone whom the landlord reasonably considers possesses the skills and experience necessary to determine:

  1. whether the property is substantially free from damp and mould; and
  2. if it is not, whether repair work is required.

Relevant experience may include:

  • inspecting or treating damp and mould;
  • building surveying;
  • housing maintenance;
  • environmental health;
  • construction;
  • property inspection; or
  • related fields.

The investigator should also have sufficient knowledge of Scotland’s housing standards framework. A landlord therefore does not necessarily have to instruct a chartered surveyor or specialist damp company in every case.

The question is whether the person undertaking the particular investigation has the appropriate skills and experience for the circumstances. The guidance does provide examples of organisations and sources of information that landlords may find helpful such as The Royal Institution of Chartered Surveyors, The Property Care Association and the Chartered Institution of Building Services Engineers.

What should the investigation determine?

An investigation must determine whether the house is substantially free from damp and mould and, if not, what repair work is required?

The investigation should also attempt to identify the root cause of any damp and mould, and should generally be carried out “in person” unless an alternative method, such as a remote investigation, is appropriate.

Potential causes could include:

  • rising damp;
  • penetrating damp;
  • condensation;
  • inadequate ventilation;
  • inadequate heating;
  • inadequate insulation;
  • leaks;
  • defective gutters/downpipes;
  • roof defects;
  • plumbing failures;
  • structural defects; or
  • other sources of excess moisture.

What does “substantial free” of damp or mould mean?

There is no specific statutory measurement defining when a property will be counted as being substantially free from damp or mould, but the guidance proposes a framework based on three principal considerations:

  • Exposure and extent, meaning the size and extent of affected areas.
  • Vulnerability, meaning whether an occupant may be particularly vulnerable to damp and mould, for example babies, children and young people, pregnant women and those who have recently given birth, people with existing health conditions potentially exacerbated by damp/mould. Importantly, medical evidence is not required, and landlords should take information provided by tenants about vulnerability at face value.
  • Underlying cause, meaning whether there is a structural defect, inadequate ventilation, inadequate insulation, inadequate heating, or another factor likely to cause persistence or recurrence.

The guidance refers to the way compliance with the Tolerable Standard is assessed in that a property may not be treated as meeting the Tolerable Standard where there is persistent visible penetrating damp covering approximately:

  • more than 10% of overall wall space in one apartment, or
  • more than 10% of the ceiling in one apartment, or
  • more than 20% of wall space or ceiling in certain other spaces

However, these are not rigid tests, and the guidance expressly states that the assessment must be made on a case-by-case basis and that no single factor is determinative.

What should landlords do where they suspect issues are caused by condensation and tenant behaviour?

The guidance recognises that condensation can be influenced by household factors such as cooking, drying clothes, inadequate ventilation, inadequate heating, overcrowding and poor air circulation.

However, a landlord must not assume that a report of damp or mould is caused by the tenant behaviour and simply reject a complaint on the basis that they think it is the tenant’s fault.

The landlord must first investigate and if the investigation establishes that household factors are the primary influence, those factors can be taken into account. The landlord may then provide appropriate advice or support.

What information should be in the written summary of the investigation?

Following completion of the investigation, the landlord must provide the tenant with a written summary within 3 working days which can be issued electronically, by post, in person or by an equivalent method. The 3 days relate to when the summary is issued, and not when the tenant actually receives it.

The summary should include:

  1. the name of the investigator/organisation;
  2. a brief description of the investigation;
  3. the findings;
  4. an explicit conclusion as to whether the property is substantially free from damp and mould;
  5. details of any work already carried out;
  6. if substantial damp/mould exists:
    • the work required; and
    • the target timeframe for commencement;
  7. if substantial damp/mould is not identified:
    • the reasons for that conclusion; and
    • any other repairs being undertaken under the landlord’s normal procedures.

What does the guidance say about when repairs should commence and be completed?

Where substantial damp or mould is identified, repair work must commence within 5 working days following conclusion of the investigation.

“Repair work” is interpreted relatively broadly and could include mould treatment, temporary safety measures, safety work, specialist intervention, remedial works, advice; and monitoring. However, commencement of a minor temporary measure does not necessarily discharge the landlord’s wider obligations. The important question is whether the measures ultimately address the problem sufficiently to ensure the property remains substantially free from damp and mould.

Unlike the provisions applying to social landlords, there is no fixed 20-working-day completion period for private landlords. The private landlord must complete the repair within a reasonable time / as soon as reasonably practicable.

What constitutes a reasonable period will depend upon the circumstances, including:

  • seriousness of the damp/mould;
  • health implications;
  • vulnerability of occupants;
  • complexity of the repair;
  • availability of contractors;
  • availability of materials;
  • whether structural work is required; and
  • whether temporary measures have made the property safe.

A landlord should therefore be able to demonstrate why the period taken was reasonable. It is also worthy of note that a landlord’s responsibility does not necessarily end when the immediate mould is removed and they must ensure, so far as reasonably practicable, that the property continues to be substantially free from damp and mould.

What if the problems come back or get worse?

If the landlord becomes aware that the problem has significantly changed, a new investigation will be required.

Examples include:

  • mould spreading;
  • a significant increase in the affected area;
  • mould appearing in a new location; or
  • a materially different damp problem emerging.

The process then effectively starts again. However, a landlord is not automatically required to reinvestigate an unchanged problem merely because a tenant disagrees with the original conclusion. A landlord should retain clear records explaining their decision.

What are “Exceptional Circumstances” and how do these affect a landlord’s duties?

Exceptional circumstances are those beyond the landlord’s control which prevent compliance with the statutory timescales.

Examples given in the guidance include:

  • severe weather;
  • travel barriers;
  • illness;
  • bereavement;
  • unexpected contractor problems;
  • supply-chain difficulties;
  • inability to obtain access despite reasonable attempts; and
  • unforeseen delays in obtaining external approvals or permissions.

Where a landlord cannot comply, the tenant should be told:

  1. which particular duty cannot be met;
  2. why it cannot be met;
  3. the revised timeframe; and
  4. what interim steps are being taken to minimise the damp/mould.

Where the landlord cannot immediately complete the required work, reasonable practicable steps should be taken to minimise the problem meantime. These might include:

  • mould removal;
  • temporary extractor fans;
  • temporary sealants for leaks;
  • temporary repairs;
  • monitoring; or
  • other safety measures.

The interim measure should be proportionate to the circumstances and should not be used as a substitute for permanent remedial work where permanent work is reasonably required.

Where a tenant refuses or fails to provide access, the landlord should make reasonable attempts to obtain access and should keep records of those attempts. The guidance states that where a tenant is unwilling or unable to permit entry, the landlord will not be regarded as being in breach of their duties provided, they have taken reasonable attempts to comply (which may include seeking access orders).

What records should landlords keep?

Record keeping is particularly important and landlords should retain evidence of:

    • when the issue was first reported/discovered;
    • how it was reported;
    • communications with the tenant;
    • attempts to arrange access;
    • dates of inspections;
    • identity and competence of investigators;
    • investigation findings;
    • photographs;
    • measurements/readings where relevant;
    • the written summary;
  • decisions about whether the damp/mould was substantial;
  • identified root cause;
  • quotations and contractor communications;
  • repair instructions;
  • commencement date;
  • completion date;
  • interim measures;
  • communications explaining delays; and
  • follow-up inspections.

If the tenant alleges non-compliance, landlords may need to demonstrate why the statutory timescales were met or why they could not reasonably be met.

What if landlords do not comply, how are these duties enforced?

For private tenancies, enforcement is through the First-tier Tribunal for Scotland (Housing and Property Chamber). Where referred to the tribunal, they can consider whether or not the landlord has complied with their duties.

Where appropriate, the Tribunal may issue a Repairing Standard Enforcement Order (RSEO) requiring the landlord to carry out specified remedial work. Failure to comply with an RSEO without reasonable excuse is a criminal offence.

The Tribunal may also issue a Rent Relief Order (RRO), restricting (up to 90%) the rent payable until the RSEO is complied with and even if the RRO is subsequently lifted, any rent restricted by the RRO is unrecoverable.

If you require any further information or advice, please contact us or watch our blogs for further updates.

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