The issue of costs that are the responsibility of the tenant?

by Readers Question

16:06 PM, 30th July 2019
About 3 weeks ago

The issue of costs that are the responsibility of the tenant?

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The issue of costs that are the responsibility of the tenant?

Recent legislation prohibits the applying of fees to tenants. Our AST clearly sets out the exact nature of the tenants responsibilities during their day to day occupation of the property. For example if a light bulb fails it is their contractual obligation to replace it, likewise If the sink blocks, they damage internal fittings etc.

Before this legislation we would send in one of our approved contractors, costs agreed and the tenant would be sent the bill. Our managing agents say this course of action is now illegal.

How are we to deal with the issue of costs that are the responsibility of the tenants as they have agreed and understood by signing the AST?

Would really appreciate your opinion and guidance.

Many thanks,

Kevin

 



Comments

Neil Patterson

16:14 PM, 30th July 2019
About 3 weeks ago

Hi Kevin,

This doesn't specifically answer your question, but below is the official government guidance on the fees ban, but is this then a fee.

The only payments you can charge in connection with a tenancy are:

The rent

A refundable tenancy deposit capped at no more than five weeks’ rent where the annual rent is less than £50,000, or six weeks’ rent where the total annual rent is £50,000 or above

A refundable holding deposit (to reserve a property) capped at no more than one week’s rent

Payments to change the tenancy when requested by the tenant, capped at £50, or reasonable costs incurred if higher

Payments associated with early termination of the tenancy, when requested by the tenant

Payments in respect of utilities, communication services, TV licence and council tax; and

A default fee for late payment of rent and replacement of a lost key/security device, where required under a tenancy agreement

If the fee you are charging is not on this list, it is a prohibited payment and you should not charge it. A prohibited payment is a payment outlawed under the ban.

Ian Narbeth

17:09 PM, 30th July 2019
About 3 weeks ago

Kevin
Apart from the items Neil has mentioned you cannot stipulate specific costs for specific damage. So it is illegal to recover a cost where, say, the AST says the charge for replacing a light bulb will be £10 or the cost of unblocking a sink will be £50.
However, you can claim as damages the costs of remedying breaches of the tenancy.
The authority for this is Clause 1(6) of the Tenant Fees Act which says:
"1 (6) For the purposes of this section, a landlord requires a relevant person to make a payment, enter into a contract or make a loan in connection with a tenancy of housing in England if and only if the landlord—
...
(e) requires the person to do any of those things—
(i) as a result of an act or default of a relevant person relating to such a tenancy or housing let under it, and
(ii) otherwise than pursuant to, or for the breach of, a provision of a tenancy agreement..."
You can only claim the loss you have suffered. In practice you will probably go through the DPS or TDS arbitration scheme if the tenant does not agree. They will look to see that the expense was reasonable and reasonably incurred. Light bulbs would normally not need to be replaced by the landlord during the term.

Binks

17:35 PM, 30th July 2019
About 3 weeks ago

Reply to the comment left by Ian Narbeth at 30/07/2019 - 17:09
Hello Ian, I’m still confused by this. How does DPS/TDS arbitration come into it when it’s a cost for a repair in the middle of a Tenancy? Real example: tenant calls that his washing machine is leaking and upon visit, the engineer finds coins from said tenant’s pockets blocking the waste? Surely the engineer’s attendance cost is in full payable by the tenant? However of course the engineer will want payment from whoever arranged the callout, so this has to be passed onto the tenant by the landlord. Are you saying that a clued up tenant can now dispute this as an illegal fee and the landlord has to pay? Surely not, or have I misunderstood? Thank you

Ian Narbeth

17:43 PM, 30th July 2019
About 3 weeks ago

The key question is whether the tenant is in breach of the tenancy and that the repair is not something for which the landlord is responsible.

Can you give some more information? Are you talking about a furnished let on a single AST or an HMO or something else?

Who called out the engineer? It sounds as if it is your washing machine but you are saying the tenant was negligent in leaving coins in his pocket.

I mentioned DPS/TDS as it is unlikely you will sue in the court for damages.

Binks

18:59 PM, 30th July 2019
About 3 weeks ago

Reply to the comment left by Ian Narbeth at 30/07/2019 - 17:43
Ian it’s an unfurnished AST let, but with fitted white goods provided. Just to clarify this is a case from the past, but I’m curious how the tenant fee ban affects this scenario. The washing machine was mine and I called out an engineer. I’m perfectly happy to fix an appliance which I provide that malfunctions, but not to pay for fixing any damages to said appliance directly caused by a tenant. Thanks again

Ian Narbeth

11:09 AM, 31st July 2019
About 3 weeks ago

Reply to the comment left by Binks at 30/07/2019 - 18:59
Binks, you would have to show, on the balance of probabilities - ie. more than 50% likelihood - that it was the tenant's negligence that caused the breakdown. The Tenant Fees Act won't affect it per se but if your AST said: "Cost for calling out an engineer: £80" you could not enforce that but you could recover actual losses.

Steve Masters

11:30 AM, 31st July 2019
About 3 weeks ago

Surely, if the problem is clearly the tenants responsibility and they are given the chance to repair or replace themselves but decline to do so and prefere the landlord to spend his time and money on the solution and the landlord passes on the reasonable actual costs then this isn't be a prohibited payment. Yes?
However, what if:-
A) the tenant doesn't report the problem, the landlord or his agent spot it and initiate the request for a solution mid tenancy?
or
B) it is not clear whose responsibility the problem is until further inspection?
or
C) the landlord doesn't use one of his tradesmen but spends a considerable amount of time on the job himself?

Steve Masters

11:42 AM, 31st July 2019
About 3 weeks ago

Reply to the comment left by Steve Masters at 31/07/2019 - 11:30I still think that so long as the tenant agrees the landlord should repair or replace and it turns out to be the tenants responsibility then in effect the tenant has instructed the landlord to act as his supplier not as his landlord and as such any reasonable actual costs passed back to the tenant should not be considered prohibited payments from the landlord but fees from a tradesman or supplier who just happens to be the landlord.

The key is the fees are optional, reasonable and actual.

JJ

11:47 AM, 31st July 2019
About 3 weeks ago

Reply to the comment left by Neil Patterson at 30/07/2019 - 16:14This is something I also struggle with.
Before my present tenants moved in I had my main sewer inspected with a camera, flushed and a new section of liner put in. This was because I'd had a tree root growing into the sewer near the point of egress to the main sewer on the highway. The engineer sorted it out, confirmed that the sewer was fine all the way from the gulleys in the house to the road by using a CCTV camera.
Tenant moves in with four kids - three are teenage girls. Drain blocks up after a couple of months, tenant calls my agent. Drainage engineer is called out - there is a wad of material sitting in the sewer. It's removed, drain is flushed. Payment is deducted from my rent. Engineer says he can't confirm misuse. It happens again - again I pay, again engineer says he can't confirm misuse but there's nothing wrong with the sewer. Then it just stops happening. I've done nothing different to the drain other than have it checked and lined at the beginning of the tenancy.
It's difficult to recover your costs from the tenant if you can't get a report from the engineers saying the tenant has done something wrong.

Ian Narbeth

11:49 AM, 31st July 2019
About 3 weeks ago

Reply to the comment left by Steve Masters at 31/07/2019 - 11:42Steve
The OP said he supplied the washing machine. As such he has assumed responsibility for repairing and maintaining it. If it breaks down the starting point is that the landlord is responsible. Only if the tenant caused the problem can you look at making him pay. It would be different if the tenant bought the machine himself.
I have just turned down a request to supply a washing machine for this very reason but I am willing to offer the tenant an allowance or a rent-free period and they can buy it. The machine then becomes their responsibility.

Consider also if the machine leaks and causes damage to carpets or timbers. If it's your machine, you will likely pick up the bill. It may be hard to prove it was the tenant's fault. If it is the tenant's machine he is responsible for the additional damage.

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