When one user took to the Landlord Zone forum to introduce the topic, responsibility for clearing gutters, they may not have expected what was to follow.
It appears that landlords and tenants alike cannot agree on the matter, regardless of legislation or past rulings.
The user kicked off discussions by asking: “It seems common practice to put a clause into ASTs [Assured Shorthold Tenancies], which makes tenants responsible for the clearing of gutters. Is this acceptable/legal?”
The person continued by explaining that they think making this a requirement is “going one step beyond what you can expect a tenant to do.”
They ask: “What happens if the tenant has no ladders, or 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?”
The user claims: “Is it an unfair term in the AST? I’ve read a few OFT [Office of Fair Trading] reports indicating that they consider it to be such.”1
They also include the Landlord and Tenant Act 1985 in their enquiry, which applies as follows:
11 Repairing obligations in short leases.1
(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)
And:
17 Specific performance of landlord’s repairing obligations.1
(2) In this section—
(d) “repairing covenant” means a covenant to repair, maintain, renew, construct or replace any property.
The above legislation explains that it is the landlord’s duty to keep the gutters in repair. Repair is then indicated to also include maintenance.
However, another user replies by saying: “Keeping in repair the structure of a gutter is not the same as cleaning it.”1
They then refer to the Warren vs. Keen 1954 case, in which Lord Denning defined the term, tenant-like manner. He said: “The tenant must take proper care of the place… In short, he must do those little jobs about the place which a reasonable tenant would do.”1
It became apparent, following this statement, that users had a difference of opinion on what classes as reasonable.
The initial user who posed the question says: “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. Health and safety, and liability are much more at the forefront of consideration.
“I’d quite like to see the outcome of a case where a tenant fell off a roof as a result of the landlord asking them to clean the gutters.”
The user then offers an alternative for landlords: “Wouldn’t it be safer for the landlord to employ a suitable gutter cleaner and just up the rent to cover it?”1
Another user, who has both a gutter cleaning business, and a gutter clearing business, states: “Gutter cleaning and gutter clearing are two separate services.
“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.”
They then give their opinion: “I’d suggest that clearing the gutter is in the interest of the property owner.”
From a landlord insurance perspective, they explain: “Insurance companies may want evidence that the gutters have been maintained in the event of a claim. Professionals provide invoices and some offer photos and video footage to their customers.
“If the gutters haven’t been cleared by the last tenant how will you know? If you need to make an insurance claim, how will you prove they’ve been maintained if you didn’t arrange it?”
It may be in the best interest of both parties to have professionals take care of the issue and for the cost to be a responsibility of the tenant, or for the landlord to conduct the work themselves.
The user concludes by offering: “This is the kind of area I think can separate a good landlord from a bad one.”1
Furthermore, another landlord agrees: “I’ve tended to take the view that if I haven’t provided a ladder that 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.”
A tenant then steps in to offer their side of the story. They explain: “I have refused point blank the following in any tenancy agreement: 1, I will not clean gutters; 2, I will not replace tap washers.
“I tell the agents this, even if it is in the AST, I put in writing that I will not perform items 1 and 2.”
The tenant then says that they have never been challenged on this.
Another user believes that tenant-like behaviour, as explained by Lord Denning, does not “include anything that involves clambering up a ladder to the roof.”
They also think that it is down to the fact that blocked guttering is not caused by the tenant, and “unless the tenant actually physically blocks the gutters, an obligation on him to clear them would be void.”1
However, another user points back to the 1985 act, saying: “The lessee has to repair the structure and exterior, which is clarified to include drains and gutters. Keeping a gutter clear of obstruction is not a repair, it’s maintenance; fixing a broken or leaking pipe would be a repair.”
Then they say: “It might be sensible for a landlord to clean out gutters as part of tidying up between tenants, but once in situ, I’d expect the tenant do keep them clear, and therefore better to put that in the contract to make things clear.”1
As legislation and previous rulings seem to still cause disagreement in the sector, it could be wise for this specific issue to be cleared up in a tenancy agreement, and avoid one party believing they do not hold responsibility.
The tenant who will not clear gutters explains why they believe there should not be such a difference over repairs and maintenance. “Getting a yearly gas certificate is not a repair, it’s checking everything works, nothing is repaired for the money you spend on the checking procedure, so should the tenant pay for that?” they ask. “Servicing a boiler is not a repair, it’s maintenance to ensure correct operation.”
The tenant concludes by saying: “Sorry, gutters are not my problem, it’s outside and above my head.”1
The outcome seems to indicate that various tenants, landlords, and tenancies will hold a different perspective on the issue. Another user believes: “It seems quite unreasonable to expect a tenant on a six-month let to clear the gutters, or even a 12-month.
“Someone who has been resident for years though, it’s perhaps less unreasonable.”
They refer to tenant-like behaviour: “Lets were longer when the tenant-like manner concept was introduced. Having the chimney cleaned/cleared is, from what I read, considered the tenants’ responsibility, a similar thing perhaps to having the gutters done where they have blocked over the course of a longer tenancy.”1
Another landlord points out: “I don’t have to get the boiler serviced, but I do as it is likely to prolong the life of the boiler, but this is something that is of little interest to a tenant.
“Most tenants are unlikely to notice if the gutter needs clearing, and it is of little interest to them either way. It is however of interest to the landlord, as long-term structural damage can result from overflowing gutters.
“Where a, the job is dangerous, and b, it’s not necessarily something that needs to happen every tenancy, and c, the structural maintenance of the building depends on it, I as landlord would expect, and want, to take responsibility for it.”1
Regardless of the varying views and opinions of landlords, homeowners, and tenants, this issue could cause problems if not outlined definitively at the beginning of the agreement. Despite whose duty it is to clear the gutters, it is still important for the landlord to confirm whether they are happy to sort it, or they expect it of tenants.
1 http://www.landlordzone.co.uk/forums/archive/index.php/t-48386.html