Responsibility for clearing gutters

[Trawler]

I'd have thought this would be quite a simple matter, but I can't find a definative answer anywhere. Can you advise?

It seems common practice to put a clause into ASTs which makes tenants responsible for the clearning of gutters.

Is this acceptable/ legal?

On 1st thought, and having spoken to a few people, it seems the concensus that it's fine. However, I'm concerned that this is going 1 step beyond what you can expect a tenant to do.

What happens if the tenant has no ladders/ is afraid of heights? What would happen if the tenant fell off a ladder while trying to clear the gutters? Would the landlord be liable for forcing them to go and do it?

Is it an 'unfair term' in the AST? I've read a few OFT reports indicating that they consider it to be such.

Also - the LL&T Act:

Landlord and tenant act 1985

11 Repairing obligations in short leases.
(1)In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor—
(a)to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),


17 Specific performance of landlord’s repairing obligations.
(d)“repairing covenant” means a covenant to repair, maintain, renew, construct or replace any property.


Would love to hear your comments.

[westminster]

Not sure I agree with OFT guidance. 'Keeping in repair the structure' of a gutter is not the same as cleaning it.

The tenant is obliged to behave in a tenant-like manner. Lord Denning famously defined this in Warren v Keen 1954:

"What does "to use the premises in a tenant-like manner" mean ? ..The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, when necessary and also the windows.He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do those little jobs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house wilfully or negligently; and he must see that his family and guests do not damage it; and if they do, he must repair it. But apart from such things, if the house falls out of repair owing to fair wear and tear, lapse of time or for any reason not caused by him, then he will not be liable to repair it."

[mariner]

I would say repairing, replacing & painting gutters is LL resp but clearing them of debris is T-like behaviour.
T does not have to climb ladder etc he can employ a tradesman. Often the window cleaner can be persuaded for £20.

[oaktree]

I agree, tenant is only obligated to see it done not do it himself.

I had a tenant who refused to cut the grass as he suffered from chronic hayfever - didn't stop him renting a house with a big garden though - and thought the 'tenant must maintain the garden etc' clause was an 'unfair term' - he was shocked when we suggested he use a gardener

[Trawler]

Thanks for your replies

I seem to be in a minority here. I really don't think it's reasonable to be putting in contracts that tenants must clear the gutters.

With reference to the Denning statement above, that was in 1954, and times do change (yes, I appreciate that precedents don't unless formally in court). Health and Safety and liability is much more at the forefront of consideration.

Doesn't the Health & Safety at Work Act S3 apply to landlords? (to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.)

Denning clearly says that the tennant must clean the chimney, but on the flipside, in 2005, the OFT stated:
"Sections 11-14 of the Landlord and Tenant Act 1985 (as amended) apply to the agreement. These require the landlord to keep....in repair and proper working order the installations in the property.....for space and water heating." That would include the chimney wouldn't it - and contradicts what Denning says?


Denning also refers says the tenant should:
"do the little jobs about the place which a reasonable tenant would"
However, I would not class scrambling about on a 2 or 3 storey high roof as a 'little job' like unblocking a sink.

I'd quite like to see the outcome of a case where a tenant fell of a roof as a result of the landlord asking them to clean the gutters. Especially when it'd be such a simple job for a landlord to fit a leaf guard (£9 from B&Q) in order to avoid the issue in the 1st place. One could almost argue that gutters NOT fitted with leaf guards are defective.

I think given the above responses, and general concensus, I may have to accept that landlords can require tenants to clear the gutters, but I still think it's wrong, and I'll continue to do it for my tenants.

Wouldn't it be safer for the landlord to employ a suitable gutter cleaner and just up the rent to cover it?

[hospes]

Hi

I joined this forum when I spotted this topic
I'd like to add some more food for thought.

Gutter cleaning and gutter clearing are two separate services.

I run two separate businesses. A window cleaning business which uses one set of equipment for cleaning windows, frames, gutters down pipes, cladding etc.
We visit customers monthly or so.

Separately I run a gutter clearing business . For this we use a gutter vacuum and very occasionally ladders. Normally we revisit customers annually though in some areas more frequently.

Furthermore I'm a landlord.

We're responsible for maintaining our property and it's fixtures. We pay good money to insure our property.
If we don't maintain it properly our insurance may be invalidated.

Gutters need to be maintained whether the property is vacant or occupied.
So the example above of chimney clearing isn't a good one.

I'd suggest that clearing the gutter's is in the interest of the property owner. but that doesn't necessarily mean that the owner needs to foot the bill if this is your concern.

Flats are the easiest example. We clear the gutters for the management company, they pay us but they pass the cost on to the tenants.
If the management company doesn't clear the gutters they'll become clogged, and no longer function adequately. This can lead to water overflowing causing damage to the building. In winter they could fill with ice, snow and ice. During freeze thaw periods icicles could hang from them, worsened if there's been no drainage . We've all noticed gutters pulled down by the weight of icicles. Moss and other debris could flow in to the down pipes and block other pipes. Many buildings have down pipes plumbed straight into the ground or are concealed.

Insurance companies may want evidence that the gutters have been maintained in the event of a claim. Professionals provide invoices and some offer photo's and video footage to their customers.

If the gutters haven't been cleared by the last tenant how will you know? How will you know if the last three tenants haven't cleared them? When was the last time your gutters were cleared? If you can see debris or growth protruding from the gutters they've probably not been cleared for years.

Now that you've become aware of your gutters, are you going to ask your current tenants to clear them? They'll have a bigger bill if they've not been maintained for some time and they may only be on a 6 month contract. Who's responsible if you have two separate tenants in the same property in a year?

If you need to make an insurance claim how will you prove they've been maintained if you didn't arrange it? Your tenant may have moved out and may have paid a local cash in hand window cleaner £20, 18 months ago, or they may not have had it done at all?

Will you get a professional in to clear them when your tenant leaves and deduct it from the bond if they haven't provided evidence that they've been cleared in the last 12 months? If you don't, how can you ask the next tenant to maintain them?

In truth most people rarely think about getting their gutters cleared until they're blocked and they can no longer put up with the annoying sound of the over flow when it's raining at night. Once cleared many f those people may continue to routinely clear them as long as the professional reminds them annually, the other half will wait until they're blocked and then put it off some more. It's human nature.

But this is the kind of area I think can separate a good landlord from a bad one.

[thesaint]

But this is the kind of area I think can separate a good landlord from a bad one.

Welcome to the forum
Your knowledge on gutters seems logical and thorough.

The thread is about legal obligations though, not so called "good" and "bad" landlords.
I dislike when people imply landlords that do what they are legally entitled to do are "bad".

[jackboy]

I used to pay someone £50 to clear the gutters if a tenant complained but now I think I'd tell the tenant they are responsible for clearing them, I am responsible for repairs

[Grrr]

I've tended to take the view that if I haven't provided a ladder which is tall enough, it is not reasonable to expect the tenant to clear the gutter. I couldn't reasonably expect them to mow the lawn if I hadn't provided a mower.

Therefore, gutters which are above ground floor extensions (and therefore reachable by a normal domestic step-ladder), I tell the tenants to maintain. While gutters at first floor or above, I get a professional to do it and I cover the cost.

[Direct]

I agree with theSaint.
Grr, I don't agree that a landlord must provide a lawnmower. If a tenant takes a property with a garden then he should expect to look after it, just as a good tenant should look after the house, using his own vacuum cleaner, broom etc.
Tenants are not the landlord's children.

[monsterp]

As an alternative suggestion, every time my decorator paints the outside of the house (every 3-5 years), the first job he does is clear out the gutters and fixes any slight problems. Job done.

[ram]

I have refuse point blank the following in any tenacy agreement.

1) I will not clean gutters

2) I will not replace tap washers

..... 2 comes under fair wear and tear, but landlords are now putting washers in the agreements, gutter cleaning, and what will be next -- ? Dismantle the flue in the boiler and clear out the soot,
etc etc etc.

Yes, I do tell the agents this, even if it is in the A.S.T. I put it in writing that I will NOT perform items 1 + 2.
I have not been challenged on this.
( I do of course say this only when I have been accepted and seen the AST and am about to pay the first months rent. )

I urge all tenants to draw the line at tap washers and gutters.

[Berlingogirl]

I agree with ram.

I don't expect tenants to clean the gutters or replace tap washers. Repalcing tap washers isn't an easy job if you've no plumbing experience. However, the rent covers these expenses. If the rent was a 'bargain' then I'd expect the tenant to do these jobs.

And I don't provide lawnmowers!

[ram]

I agree with ram. And I don't provide lawnmowers!

I supply my own lawn mower by the way, windows cleaned once a year ( paid for ) before anyone condems me as a problem tenant.
If it's at ground level, I have no problem looking after the property.

[bhaal]

The relevant provisions of the Landlord and Tenant Act 1985 Act are as follows:

11 Repairing obligations in short leases.
(1)In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor—
(a)to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

(2)The covenant implied by subsection (1) (“the lessor’s repairing covenant”) shall not be construed as requiring the lessor—

(a)to carry out works or repairs for which the lessee is liable by virtue of his duty to use the premises in a tenant-like manner, or would be so liable but for an express covenant on his part,

12 Restriction on contracting out of s. 11.

(1)A covenant or agreement, whether contained in a lease to which section 11 applies or in an agreement collateral to such a lease, is void in so far as it purports—

(a)to exclude or limit the obligations of the lessor or the immunities of the lessee under that section, or

(b)to authorise any forfeiture or impose on the lessee any penalty, disability or obligation in the event of his enforcing or relying upon those obligations or immunities,

unless the inclusion of the provision was authorised by the county court.

The question is whether having to clean gutters is part of the tenant's 'duty to use the premises in a tenant like manner' as that phrase is used in the Landlord and Tenant Act 1985. It seems that the Act's authors intended to import a particular term of art when they used the phrase 'tenant like manner' and probably meant to refer to the meaning given to the phrase by Denning LJ in Warren v Keen. Why would a pro-tenant piece of legislation import a phrase often cited to impose a duty on tenants? Because in Warren v Keen the landlord failed in his duty to impose a repairing obligation upon the tenant. The case is often cited by landlords in support of imposing ridiculous obligations on tenants. It is not correct to do so. The key part of Lord Justice's Denning's judgment is as follows:

Apart from express contract, a tenant owes no duty to the landlord to keep the premises in repair. The only duty of the tenant is to use the premises in a husbandlike, or what is the same thing, a tenantlike manner … But what does “to use the premises in a tenantlike manner” mean? It can, I think, best be shown by some illustrations. The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, when necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house, wilfully or negligently; and he must see that his family and guests do not damage it: and if they do, he must repair it. But apart from such things, if the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, then the tenant is not liable to repair it.’

I do not think that the 'little jobs' Lord Justice Denning referred to included anything that involves clambering up a ladder to the roof and spending several hours clearing away detritus that may have accumulated over several years when the tenant would most likely have been in occupation for a fraction of that time. In almost all cases if the repairing obligation that a landlord seeks to impose on a tenant in respect of the external structure of the house goes further than repairing the damage caused by the tenant then it does not benefit from the exception in s11(2). It would therefore be void under s12. This means that unless the tenant actually physically blocks the gutters an obligation on him to clear them would be void.