Are you worried about your non paying tenants? >> Click here for our free guide

Tenants without hot water as landlord cannot access boiler to do repairs

taps waterHere is a question to the blog clinic from Luke who is a tenant

I am a tenant in an unhappy situation, I cannot find reliable advice anywhere. Please can you point me in the right direction.

My girlfriend and I have not had any hot water in our flat for two months, we have an electric shower so at least I can wash in comfort but boiling a kettle every time we want to wash anything else is getting ridiculous. Now we need heating so the matter has become even more urgent.

Our flat is on the middle floor of a large building which was originally one house and the boiler is in the basement.

Our landlord is a company but they do not own the whole building so when we reported the problem to them they immediately attempted to contact the people responsible for the boiler. We were then told that the telephone number they held in their records was incorrect, my girlfriend found out the correct number by speaking to one of our neighbours in the flat across the hall.

We have been informed that the company that owns the building has gone into administration and no one knows who to contact. Our landlord is refusing to take any action because they are not responsible for repairing the boiler and seem to have given up.

We called the council but had to pester them continuously until they eventually sent out a woman. She looked in the flat, confirmed there was no boiler and a locked door leading to the basement, then she left. Nothing has happened since.

Two other flats have hot water which is provided by other means so they are not bothered. We have concluded that the other flats are empty or that the residents are not affected because no one else seems to have raised the alarm.

We appreciate that the landlord does not own the boiler but feel they should be doing more to sort out this problem, their apathetic stance is very frustrating. Is there anything we can do as tenants to force the issue and is?

Also the landlord has said that they are not in breach of contract because they do not own the boiler, is this true?

This is a very tricky situation not least for your landlord who is not entitled to break down the door where the boiler is situate to get in and do repairs.

Under law (s11 (1)(c) Landlord & Tenant Act 1985) your landlord is responsible

to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

However s3A then goes on to say that where the landlord/lessor

…  does not have a sufficient right in the part of the building or the installation concerned to enable him to carry out the required works or repairs,

then, in any proceedings relating to a failure to comply with the lessor’s repairing covenant, so far as it requires the lessor to carry out the works or repairs in question, it shall be a defence for the lessor to prove that he used all reasonable endeavours to obtain, but was unable to obtain, such rights as would be adequate to enable him to carry out the works or repairs

So your landlord is correct.  If you were to go to court for an injunction or compensation he would be able to defend the proceedings on that basis.

I think all you can do is find somewhere else to live and move out as soon as you are able.  If you are still part way through your fixed term, your landlord may be agreeable to let you leave early in the circumstances.

NB See Giles Peaker’s comment below though as he takes a more hopeful view.

 

Buffer

Important note. If you are reading an old post, remember that the law may have changed since it was written.




Landlord LawAre you a letting agent or property manager?


Its a risky business if you don’t properly understand the legal issues


Landlord Law>> Click here for some special & free services to help you


 From Landlord Law and Easy Law Training





If you have a landlord and tenant related question please do not ask it here but use our
>> Blog Clinic.

Comments close after three months. Please >> click here to read our comments policy

Page 1 of 11

12 Responses to Tenants without hot water as landlord cannot access boiler to do repairs

  1. It might be that 11(3A) gets the landlord off the hook. (3A) applies where the covenant has effect under (1A), not (1). It is arguable that the boiler installation elsewhere in the building would fall under (1A)(b)(i), but I wouldn’t be definite.

    However, what is definitely open to question is “all reasonable endeavours” to “obtain the rights to do the repair”. If the landlord has simply called up the building owner (or administrator) and said ‘the boiler is broke, can you fix it’, that is wholly inadequate for (3A) purposes. Has the landlord asked for the owner’s consent to carry out the works themselves? Have they badgered the owner for such consent? If not, then I’d take the view that there is a good prospect of a successful claim for breach of s.11 obligations. It would then be up to the landlord to bring their own claim against the owner.

    On an immediate practical approach, there is no heating or hot water! This is something which the Council EHO should take more than a passing interest in. No heating can be a Category 1 HHSRS hazard, and the Council could serve improvement notices and enforce, on both the landlord and building owner, I believe.

  2. I waited before posting to run this scenario by my colleauges in Environmental Health.

    Not a terribly encouraging answer and not a lot different from Tessa and Giles’s comments.

    Their rather blunt observation was that the landlord has been happy to take the rent and should stump up the necessary for a separate boiler. Also that he should be making more effort to pressure the person with overall responsibility to sort it out.

    Category 1 was mentioned on not only lack of heating but the possibility of mould growth which may result from the problem, this also suggests the possibility of Environmental Protection Act notices as prejudicial to health but at least unanimously it was held that it would mainly be an issue for Environmental Health to take up and they would be in a better position to see if they had a route if they have visited the property in question.

    This last piece of information was offered up with a sigh of relief when I assured them it was not a client in our borough.

  3. I can see that the landlord in this case is within his rights to say that he can’t get access to the boiler and it’s not his fault but as landlords we must be able to provide the essential services to tenants so the landlord should be doing more to facilitate the repair or should ideally find out if he can fit a new boiler within this flat so that he has control over it’s function.

  4. If you have not already done so, look on the Companies house web site to get the address of the directors of the company that is your landlord and write to them at their home address clearly stetting out what is going on.

    Some facts you may wish to include:
    a) Your landlord will find it very hard to get new tenants without working heating and hot water.
    b) You will move out as soon as your tenancy agreement allows.
    c) You are in the process of taking legal advice to see if you can move out now, given the property is not fit to live in.
    d) No one will buy the flat while the freeholder is in administration, so they are stack with it unless they buy the freehold from the administer.
    e) You have been advised to stop paying rent and to hold all rent in a separate account until this is sorted out.
    f) That it is a Category 1 HHSRS hazard and you have started the process of getting the council to serve an improvement notice.
    h) So sooner or later they have to sort the problem out, so why not do it sooner and not have to find new tenants?

    (The directors of your landlord company will care about the long term, even if their staff do not.)

    ————–
    It may be possible for your landlord to get a gas boiler fitted in the flat, however this may need the permission of the freeholder to have gas put into the flat that the landlord find hard to get as the freeholder is in administration.

    Likewise it may be possible for the landlord to fit an electric water heater and storage heaters.

    You can get a small “table top” boiler to use in the kitchen for washing up etc, like they have for making tee in cafes. You can buy some electric fires for heating.

  5. Surely – in the short term – the landlord should be providing some alternatives – electric fires and some kind of instant water heaters.
    http://www.amazon.co.uk/PERFECT-INSTANTANEOUS-UNDER-WATER-HEATER/dp/B001EQ0VGC was the first one that popped up in Google – there are lots of others.

    Perhaps you should remind them that if you give notice and leave – they will not be able to re-let a flat with no hot water. So they might as well get it sorted out now.

  6. Speaking as one who has to advise on the legalities of things I often feel that sometimes the law is a chocolate teapot in circumstances like these.

    The problem is – tenant with no heating – landlord with no access to boiler.

    Section 11 – EPA Notices – HHSRS Cat 1 hazards? I JUST WANT TO WASH UP!!!!!!!

    If it was me……and this isnt legal advice, I would just kick the door in and point my landlord at the boiler

  7. “If it was me……and this isnt legal advice, I would just kick the door in and point my landlord at the boiler”

    I have been thinking something similar but didn’t think it would get past the moderator!

  8. @DaveGriffith That was approved on the basis that it was a joke and not serious advice.

    Thank you all for your comments. You are right, the tenant does have more options than I covered in my article.

  9. If the property is uninhabitable and clearly it is then frustrated contract and simply move out – after not paying rent one month (if you can stand it another month)as Landlord will doubtless want to retain it in lieu of notice if you leave immediately.

    By the way Ben what happens if the door is kicked in and then the Landlord’s contractor causes other problems? I’ve had this recently with a coommon parts cupboard that my Landlord’s electrician needed access to in order to get power on into the flat only one of 9 without it.

    What happens if he accesses it and his electrician blows all the elctrics in the whole building?

  10. I think I/O as I mentioned above that there is a problem with trying to deal with real life, practical issues as legal ones.

    I often feel an idiot trying to advise landlords and tenants of the strict legal interpretations in such circumstances. Shit happens and it doesnt help anyone to be talking section wotsit, sub-section oodgymaflip when a person is just freezing because their heating is off.

    The legal remedies when an electrical contractor blows the the whole building is one for Giles and Tessa.

    before I left work yesterday a guy came in to complain that his landlord had been in and pulled the fuses to the property. I duly rang the landlord to get her version of events and see if we could sort it.

    She directed me to her solicitor and wouldnt discuss it, so I called her solicitor who said he was merely handling the conveyancing and wasnt instructed in any other capacity.

    Section 1, Protection from Eviction Act 1977, criminal offence to disconnect utilities but so what? The guy can best solve his problem by going to Wickes, buying some fuses and getting his heating and hot water back on for the weekend. I dont see how the PFEA can help him right now.

    The guy was outraged at my practical suggestion of course and wanted something done straight-away but the courts were closed, the weekend was looming, what are you going to do? Call Ghost Busters? Or even Andrew Arden?




»

«

About the post author:

Tessa Shepperson

Tessa is a lawyer specialising in residential landlord and tenant law. She runs the Landlord Law website (now in its 12th year) and is a director of Easy Law Training Ltd and Your Law Store. Tessa also sits on the Property Redress Scheme Council. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google



The Landlord Law Blog from Tessa Shepperson

Tessa is an English lawyer specialising in residential landlord and tenant law.


Legal Services

Legal services are provided via Tessa's online service Landlord Law. Some advice services are provided by Tessa, other legal services are provided by specialist housing firm Anthony Gold.


Disclaimer

The purpose of this blog is to provide information, comment and discussion. Although Tessa, or guest bloggers, may from time to time, give helpful comments to readers' questions, these can only be based on the information given by the reader in his or her comment, which may not contain all material facts. Any comments or suggestions provided by Tessa or any guest bloggers should not therefore be relied upon as a substitute for legal advice from a qualified lawyer regarding any actual legal issue or dispute.


Nothing on this website should be construed as legal advice or perceived as creating a solicitor-client relationship (apart from the Fast Track block clinic service - so far as the questioners only are concerned).


Guest bloggers

Please note that any opinion expressed by a guest blogger is his or hers alone, and does not necessarily reflect the views of Tessa Shepperson, or the other writers on this blog.


Other websites from Tessa

Lodger Landlord | Google+ | Your Law Store | Google | Landlord Law facebook page | How to Evict Your Tenant website | the Which Tenancy Agreement Guide | Landlords Tips | Tenants Tips | Working on the Web | Landlord Law Store