Here is a question for the blog clinic fast track from Alison (not her real name), who is a tenant.
In 09/22 I entered into a 1-yr tenancy (contract managed by agency & the property by the landlord).
My contract states:
“To notify each supplier of gas, electricity, water that the Tenancy has commenced by completing an application for a supply to the Premises in the name of the Tenant and not in the name of the Landlord.”
Upon moving in, I put electricity & water in my name but couldn’t identify the gas supplier, so inquired on email with landlord. The landlord didn’t respond. 7 weeks later, he sent an email stating he was contractually bound to a supplier and demanded payment for a “warm water and heating” invoice.
I replied that I hadn’t been made aware of this prior to the start of the tenancy, and it’s not contractually agreed. Also, it hinders me from getting a competitive price. The landlord insists on payment & that I’m in breach of our contract due to this clause:
“Reimbursments: Where the Landlord is entitled to do anything at the cost or expense of the Tenant and thereby incurs a loss, then the Tenant shall pay by way of damages the loss so suffered by the Landlord promptly and when requested so to do failing which the Landlord may treat his loss as a deductible sum from the Deposit”
Also, I took photos of all existing damages in the flat upon moving in and sent them to the landlord by email (initially via a Google drive link, due to the size, and later as attachments to multiple emails). The landlord didn’t acknowledge the photos as he was awaiting an inventory report from a third-party and would only acknowledge that. He sent me said report on 01/23.
The landlord is threatening to action a Section 8 for breach of non-payment, turn off the services or mutually break the contract and I move out.
Please advise on:
1) The unpaid bills
2) am I in breach of the contract?
3) Will he get to take said bills out my deposit
4) Can he shut off the supply?
5) my legal position on all matters?
6) am I liable for existing damages that aren’t in the report but I evidenced in photos?
Answer
By way of introduction, in contracts between a landlord and a tenant, the landlord is treated as a supplier or trader and the tenant as a consumer. This means that the landlord and his agent are bound by the various ‘consumer’ rules, which require traders to act in good faith and to properly disclose all relevant matters before the start of the contract.
Let’s take a look at your questions.
1 The unpaid bill
I assume here you are referring to the gas bill which was sent to you by the landlord. I agree that the landlord is in breach of the terms of the agreement by failing to provide you with the information that you need to get the bill put in your name. I also note that the current arrangement may put you in a difficult position as regards negotiating a new contract with a gas supplier. However, you have presumably been using gas while you have been living in the property, so it is not entirely unreasonable that you should pay for this gas – for the period of your tenancy.
However, you could point out to the landlord that there is nothing in the contract about your reimbursing him for utilities. As regards the clause he has drawn to your attention, this is on the basis that he is ‘entitled to do anything at the cost or expense of the Tenant’. Whereas in fact, the contract did not entitle him to arrange for the gas supply, on the contrary, it required you to arrange this. If he had a pre-existing contract he wanted you to be bound by, he should have told you. The fact that this was not done puts him in the wrong.
2. Am I in breach of the contract?
From what you have said, it does not look as if you are in breach. If you were not made aware of the situation regarding the gas, that is the landlord’s fault rather than yours. The contract told you to make your own arrangements for services, not to reimburse the landlord.
Also, if he asked you to sign a contract which required you to do something (ie arrange for services in your own name), he should not, by his actions (or non-action) prevent or make it difficult for you to do this.
You may also be able to complain about (or to) the agents, as they should have made you aware of this when you were signing up to the tenancy – as presumably your dealings when signing up were with them.
3. Can the landlord deduct the cost of the bills from the deposit?
If the landlord wants to make a deduction from your deposit which you do not agree with, then this can be challenged, and the dispute referred to adjudication. All three traditional deposit schemes run free adjudication services (although this is not always free with ‘alternative’ schemes). The question of who is in the right will then be one for the adjudicator to decide.
My view, though, is that you probably will have to pay something for the gas for the period of time you were using the supply. You would need to satisfy yourself, however, that the sum charged was ONLY for the period of time when you were in occupation and actually using the gas supply and was for a reasonable amount.
4. Can the landlord shut off supply?
No. Your landlord is NOT entitled to shut off the supply. If he does this, that would be harassment which is illegal under the Protection from Eviction Act 1977.
You would be entitled to go to court for an injunction ordering the landlord to put the supply back on and compensation for the period of time when you were without the service. The fact that your landlord has even threatened this puts him seriously in the wrong.
5. What is my legal position?
I think you are largely in the right (based on what you have said), although I think, ultimately, you will have to reimburse the landlord for the gas used by you. You were clearly misled at the start of the tenancy about the gas contract.
6. Liability for existing damage evidenced by photos
So far as the pre-tenancy damage evidenced by your photographs is concerned, again, if the landlord seeks to charge you for that damage, you will be able to challenge the deduction and ask that the matter be referred to adjudication.
The landlord cannot expect you to compensate him for items that were damaged before you took possession of the property.
However, if the landlord’s inventory clerk state that the items were undamaged at the time of their inspection, you will have to prove that this was not the case at the time you took over the property at the start of your tenancy. It is, therefore, important that you hang on to your photographs and any other evidence you may have, as you will need it then.
Some general advice
I am assuming in this advice that you wish to continue living at the property and do not wish to end the contract. In which case, your landlord cannot force you to move out against your will, and this is an empty threat.
There are only two ways that landlords can recover vacant possession of their property under the law;
- By the tenants moving out, or
- By obtaining a Court Order for possession and then using the County Court bailiffs or High Court Enforcement Officers.
So although the contract can be ended early if you both agree, if you don’t want to agree (and you don’t have to), your landlord cannot force you. ‘Mutually’ means both of you!
Apart from your concerns about the pre-tenancy damage not covered in the report (presumably you mean the inventory report) – which I cover at 6 above, there are two main issues
- You were not properly informed of the situation regarding the gas supply before you entered into the contract, and
- Your landlord’s threats to evict you for non-payment and to cut off your supply. Hopefully, you have these threats in writing.
Assuming negotiations prior to signing the tenancy were carried out with the landlord’s agents, I think you could justifiably complain to them that they did not represent the true situation to you at that time.
It sounds as if you have suffered loss as a result of this as
- you are not able to negotiate properly for a new gas contract, and
- in the meantime, you are being charged by the landlord on the basis of charges which have never been agreed with you.
You could also point out to them that your landlord is
- Threatening to cut off supply – which is illegal, and
- To evict you after service of a section 8 notice – when you are not in arrears of rent.
So far as the notice is concerned – normally, when landlords serve a section 8 notice, this is based on the mandatory rent arrears ground. There is no mandatory ground for possession based on non-payment of a utility bill. There is a ground for possession based on breach of contract, but it is ‘discretionary’ only. It is inconceivable that a judge would evict someone in your position who is only trying to comply with the terms of their tenancy agreement.
So when writing to the agents, you could complain about the misrepresentation made by them (which could form the basis of a formal complaint to their Property Redress Scheme) and ask them to resolve the situation with the landlord for you.
If you want further information, note that the Renters Guide website has detailed guidance on what tenants can do if threatened with eviction and also has guidance on where you can find further advice and help.