Awaab’s Law Scotland: Condensation Needs Evidence

When the Scottish Housing Regulator published its first thematic review of damp and mould performance on 15 September, one figure stood out. Of the 40,140 cases Scottish social landlords resolved in 2025/26, condensation was identified as the cause in 59% of them.

That number is going to get misused.

Condensation sits at an uncomfortable intersection. It is a genuine building phenomenon, driven by temperature, ventilation and moisture load. It is also the diagnosis most readily reached for when a landlord wants to conclude that a problem belongs to the tenant rather than the property. Under Awaab's Law, that distinction has stopped being a matter of judgement and become a matter of evidence.

What the law actually permits

The Investigation and Commencement of Repair (Scotland) Regulations 2026 came into force on 6 October. Landlords now have ten working days to investigate a report of damp or mould, three working days after that investigation concludes to give the tenant a written summary of the findings, and five working days to begin any necessary repairs. Social landlords must then complete the work within twenty working days.

There is an exemption. Section 16(1)(b)(i) of the Housing (Scotland) Act 2006, the Act under which these duties sit, excludes work for which the tenant is liable because of their duty to use the house in a proper manner. The Scottish Government's guidance gives the obvious example: not using the heating and ventilation systems as intended. So the exemption is real. The problem is how landlords reach it.

The same guidance is unusually direct on this point. Landlords must not assume that reports of damp or mould are caused by tenant behaviour. They must not dismiss a report, or fail to investigate it, on the assumption that the problem is condensation attributable to how the tenant lives.

Read those two things together and the position is clear. The exemption is available as a conclusion. It is not available as a starting point. You cannot arrive at it by inference, by familiarity with a property, or by an officer's experienced hunch on the doorstep. You have to investigate first, and you have to be able to show that you did.

Why this is the likely failure point

Most compliance conversations since October have focused on the clock. Can we investigate within ten working days? Can we start repairs within five? Those are real operational pressures, but they are tractable. They are scheduling problems, and the sector is reasonably good at scheduling.

The harder problem is evidential, and it is concentrated in exactly the majority of cases. If condensation accounts for nearly six in ten resolved cases, then nearly six in ten cases involve a cause where the line between building failure and occupant behaviour is contested, consequential, and now legally tested.

Consider what a disputed case looks like. A tenant reports mould in a bedroom. An officer attends, finds no leak and no penetrating damp, records condensation, and advises the tenant on ventilation. Eighteen months later the mould is back and the tenant challenges the original finding.

What does the landlord actually hold? Often a line in a repairs system saying "condensation – advice given." No photographs. No record of surface temperatures or relative humidity. No note of whether the extract fan was working, whether trickle vents were present, whether that wall had a cold bridge. No evidence that the alternatives were considered and ruled out. That record does not establish that the exemption applies. It establishes that someone formed a view. This is not a hypothetical. The regulator's own data shows that of the cases which reopened in 2025/26, more than half had been recorded as condensation.

What defensible looks like

The regulator noted in its review that some landlords, particularly councils, were still developing their recording, reporting and case management arrangements, and that many are investing in systems to monitor and report cases. That investment is being driven by the new Annual Return on the Charter indicators, but the deeper driver is this: an undocumented diagnosis is now a liability.

A defensible condensation finding needs to show its working:

• Contemporaneous evidence, captured at the visit rather than written up afterwards.
• Images tied to a specific property, a specific location within it, and a specific date.
• Environmental readings where the diagnosis depends on them: surface and air temperature, relative humidity, dew point.
• A check of the fabric and the services: extract fans, trickle vents, insulation, heating type and whether it is affordable to run.
• An explicit note of what else was considered and why each was discounted.
• A record the tenant also holds, so the account is not one-sided. The written summary the regulations now require is the natural place for it.

None of this is exotic. It is ordinary professional practice, written down. But the gap between doing a competent investigation and being able to prove you did one is where most landlords are currently exposed.

The same wall twice

There is also a fairness dimension that sits alongside the legal one. The 8% of cases that recurred in 2025/26 are, by definition, cases where the root cause was not resolved. More than half of them had been put down to condensation. Some proportion of those will be properties where advice was given, the file was closed, and the underlying building problem went untouched.

Better evidence is not only a defence against a claim. It is how you stop treating the same wall twice.

Sources: Scottish Housing Regulator thematic review, reported by Inside Housing; Scottish Government guidance on Awaab's Law, summarised by the Scottish Association of Landlords; Housing (Scotland) Act 2006, section 16.