Deposit disputes: No smoke without fire – the case of an unswept chimney

In this case, the landlords claimed £75 to sweep the chimney at the end of the tenancy.

The tenants accepted that they had not swept the chimney before they moved out but argued that they had used the chimney only a handful of times during the tenancy which lasted for just over three years.

They also did not believe the chimney had been swept by the landlord for the start of their tenancy.

The tenancy agreement in this case imposed an obligation on the tenants ‘to sweep the chimney at the end of the tenancy and at least once in each year’.

No evidence was provided by the landlord to suggest that the chimney was swept for the start of the tenancy.

The tenants’ obligation in the tenancy agreement was clear.

The tenancy lasted over three years and the tenant had also acknowledged using the open fireplace during their time at the property.

The adjudicator found that even though there was no evidence of the condition or cleanliness of the chimney noted in the check-in report, it was reasonable for the tenants to pay for the chimney to be swept, given the wording in the tenancy agreement (once in each year) and particularly due to the chimney having been used.

The amount claimed was fair and reasonable.

It is always important to check a tenancy agreement at the beginning of a tenancy for any information relating to the maintenance of fixtures and fittings in the rental property.

The tenancy agreement should state whose responsibility it is to look after areas such as these.

For landlords, a fireplace and chimney should be handed over in a safe condition. If the tenant is responsible for cleaning the chimney, then its condition or cleanliness should be noted in the inventory/check-in report. It is also important to keep receipts and/or certificates as evidence for any work completed.

For tenants, understand the extent of your obligations and take appropriate steps to ensure the chimney is swept and left in the same condition and cleanliness at the end of the tenancy as it was at the start, whether it has been used or not.

It is also important to keep receipts and/or certificates as evidence for any work completed. Ensure that an appropriate fireguard is used to avoid any damage that may flow from the lack of use or care, for example, burn marks to carpets.

As with any tenant obligation, landlords and agents should ensure that the deposit use clause in the tenancy agreement allows deductions to be made, from the deposit, if the tenant fails to clean the chimney as required.

If the tenant is not responsible for the cleaning of the chimney, as per the tenancy agreement, they may be required to give access to the landlord/agent, or their contractor, if cleaning is required during the term of their tenancy.

What about items that aren’t noted as the tenant’s responsibility?

We often see cases where problems have arisen that are not the responsibility of the tenant to repair; however, they are still obliged to notify the landlord/agent so that repairs can be completed and avoid further damage occurring.

Therefore, if the tenant has not reported the issues to the landlord/agent and further damage has been caused as a result, the landlord may be able to claim from the deposit for the cost of making good that increased damage.

Finally, don’t forget to make sure your chimney is clean in time for Christmas Eve in case Father Christmas wants to drop in!

* Sandy Bastin is assistant director of dispute resolution at TDS (Tenancy Deposit Scheme) 

www.tenancydepositscheme.com

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9 Comments

  1. seenitall

    It would have cost the agents about the same if not more that £75 to process the claim.   –  Time to scan in and upload all the documents to the TDS etc.

     

    We have a min charge if a Landlord wants to make a deposit claim and its disputed of £120 to help cover our costs.

    Piggy in the middle agents are  – everyone want something from us for nothing. Tenants/Landlords/Government.   Of course rent will rise when the ban comes in.

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  2. DarrelKwong43

    I think this is a grey area.  You could argue the chimney is an extension of the space heating definition under Section 11 of the Landlord and Tenant Act, so therefore the landlord is obliged to *sweep*.  Very similar to the obligation for the landlord on a boiler flue.

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    1. Local Independent

      Not really, if there is central heating and the fire’s purely secondary or used by choice not necessity. It’s black and white, tenancy says sweep it, so sweep it. If it fires the water or heating then that might be argued as different.

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      1. Tim Hall

        DarrelKwong is correct – Section 11 of the 1985 Landlord and Tenant Act is quite clear (and makes no distinction between types of space heating, or indeed whether it needs or doesn’t need to be used).

        A Landlord cannot avoid his legal obligations with a clause in the tenancy agreement.

        I wish I could say I was surprised that the adjudicator was not aware of this, but there you go, this has always been one of my issues with the whole adjudication system.

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        1. DarrelKwong43

          Agree Tim, sadly adjudicators dont have much housing law knowledge, which makes some adjudications strange/wrong IMHO.

          If you ask them the difference between a contractual and statutory periodic, most will not know, but it can makes a huge difference in terms of a deposit adjudication.

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        2. Peter

          I can see where you are coming from, but does it not apply to “keep in repair”; cleaning the chimney is different. I would expect a tenant to clean other space heating appliances and they can employ a cleaner if they cannot be bothered. Same applies with gutters.
           
          Tenant responsibility if AST states so.

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          1. Ikram

            I agree. Certainly, if there is a blockage it would be down to the landlord, as the chimney could not be described as being “in repair”. However, sweeping is arguably a regular maintenance task for which the tenant could be held liable. Remember, Judge Denning in Warren V Keen (1954) outlined what it means to behave in a “tenant-like manner”, which is still a principal in use today: “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, where 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.” Note the specific inclusion of chimney cleaning. However, what was considered to be a regular maintenance job in 1954 might not be considered the same in 2018. My opinion? Save yourself the headache and avoid gas fires entirely. Problem solved!

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  3. Peter

    Finally, don’t forget to make sure your chimney is clean in time for Christmas Eve in case Father Christmas wants to drop in

    There is your answer, Santa surely gives the chimney a good clean on the way down and, for good measure, back up again. Proof is in the present, where else do presents come from!

    Merry Christmas to all

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    1. DarrelKwong43

      Like it 🙂 

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