UK Property Law
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Do one of the items need replacing at present please or is this for the moment a hypothetical question?
I supplied the items initially and have replaced each of them once. The washing machine broke again and the tenant repalced it the second time. I have the feeling she is about to give notice and move out so I wanted to know if the tenant has an obligation to leave the washing machine there as there was one originally supplied and on the inventory.
Thanks. Did she replace the unit with your permission or without asking? Could the replaced unit have been repaired - did it have any value?
She originally asked us to replace the machine for the second time, then changed her mind and replaced it herself with our knowledge. The machine she had when she moved in was new approximately 6 months before; approximate 2nd hand value would have been £100.
Sorry, to my knowledge it was cheaper to replace than repair both machines.
The position in law is that if the tenant replaces an item unless she agrees that the items she buys will be yours, unless it is affixed to the house so that it becomes part of the property and is difficult to remove - e.g. central heating - the appliance belongs to the tenant. However the tenant would be liable to you for the replacement value of any appliance she disposes of without your consent.
If you gave permission for her to dispose of the old machine then there would be no claim against her for the cost of the old unit.
It is worth taking a moment to examine the clause that provides for tenant being responsible for appliances' replacement...
The position regarding appliances is rather complicated because there is so much legislation that modifies and overrides tenancy agreement provisions in respect of appliances however there are one or two simple absolutes which with your permission I shall start with.
A tenant can never unilaterally deduct rent for faulty appliances or replacement appliances. Such an act constitutes grounds for eviction and claims for unpaid rent. It is only lawful to withold rent with the authority of a court.
In terms of your liability generally for appliances notwithstanding the clause in your tenancy agreement there are a variety of statutory provisions which interfere with the tenancy provision as follows:
s11 Landlord and Tenant Act states that you are responsible for installations for making use of services such as gas electric and the like but it excludes other responsibility for other fixtures by stating "but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity"
If you supply appliances, the Supply of Goods and Services Act 1982 requires you to ensure that the appliances are of satisfactory quality.
The Electrical Safety Regulations 1994 provide that you are responsible for ensuring the electrical safety of the electrics and any appliances you supply
Finally the Housing Health and Safety Rating System introduced under the Housing Act provides that you are responsible for the electrical safety of appliances you supply
The combined effect of this legislation is that it is generally worthwhile a landlord repairing appliances where they go wrong because of the risk of falling foul of safety legislation (in case it is dangerous - one doesn't know until it is inspected) and the Supply of Goods and Services Act which requires that the appliance are of satisfactory quality.
This also removes any possibility for argument about who owns what in the property on check out.
Is there anything above I can clarify for you?
Thanks Joshua. This is the statemement in the tenancy agreement she has signed refering to the appliances. FYI, the property is leashold therefore for the purpose of the tenancy agreement, as the owner of the lease I am the tenent and the current resident is the sub let tenent:
Will have the use of all appliances provided in the property, as laid out in the Inventory save those which
are noted as not working. However, should any items require repair, or be beyond repair, the Tenant
does not undertake to pay for any costs of repair or to replace the appliances other than the gas hot water
system which will be checked on an annual basis under statutory law and certified as such.
The above clause can be included if you wish - it is quite common. My view on such clauses are that the above legislation imposes so many caveats on such a clause and potential liability on the landlord that the effect of the clause is extremely limited and that it is potentially risky for the landlord to refuse to repair anyway so I tend to advise not including such provisions but providing you are aware of the above legislation having it in the tenancy does little harm as you can always agree to repair anything anyway if you have any concerns that you may otherwise fall foul of any of the above legislation.
Does the above answer all your questions or is there anything I can clarify or help with any further?
Thanks Joshua, really helpful. One last questions then I will let you go. She has always paid rent on time, but has generated a number of complaints from other residents for nuisance, noise, disturbance. Can I serve notice on the grounds of antisocial behaviour?
A pleasure. May I ask when does her fixed tenancy expire?
Have you had any contact from your landlord regarding the nuisance?
Fixed tenancy expired 10th March 2013. Complaints have been made to me via the Management Company.
Thanks. You can serve a s8 notice on the grounds of nuisance if you wish but it will in my experience be a waste of your time seeking possession on this ground alone as the courts will be ready to give her another chance.
Looking at the matter objectively - you are not living there so the nuisance is not cuasing you a direct problem. Your concern however is whether the landlord will serve a notice for breach of lease covenant on you as you are vicariously liable for your tenant and to this extent you do care if nothing else.
Accordingly you should consider being seen to cooperate either by way of informing the tenant of the issues and asking her for a written undertaking that she will address such matters for you to pass on to the landlord (if you are generally content for her to stay) or if you want her to go either because you do or because she has or will not give you the above undertaking then you would probably do better to serve her a s21 notice in the circumstances which gives guaranteed possession
Remember you need give two clear months notice and the expiry ydate for the notice must be the day before rent is payable or the notice will be invalid. Also confirm the deposit nis protected before serving or it will also be invalid.
Is there anything above I can clarify for you any further?
Deposit is protected and details are in the tenancy agreement so I'm covered there. All grievances have been discussed with her and although she hasn't responded in writing we have taken note of her responses. I guess in future I will make sure it's all in writing from both sides.
Thanks for your help Joshua, really helpful. Ecellent rating coming your way!!
Best regards, Kirsty