Legal Questions Answered By Griffin & Murphy, LLP

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Griffin & Murphy, LLP, is a boutique law firm in Washington, D.C. concentrating its practice in real estate law (including development, finance, leasing, zoning and condominium conversions), as well as estate planning and probate, civil litigation, and business law. The attorneys of Griffin & Murphy, LLP are licensed to practice law in the District of Columbia, Maryland and Virginia. Griffin and Murphy, LLP was founded in 1981.

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Question:

My roommates and I live in row house that has been split into two units. After we moved in, it became clear that the power and water for the two units for the two units were not separate. Each unit receives a separate Pepco bill, but both units share one water heater, which is located in the downstairs unit. Therefore, the electricity used to power the water heater is charged to the downstairs unit’s Pepco bill. We also receive one water bill for both units.

When we complained about this to our rental company they pointed us to a clause in our lease that said, “If any or all aforesaid utilities are not separately metered, Landlord or Agent will equitably apportion the utility in a manner of Landlord or Agent’s choosing. This apportioned amount due and payable to coincide with rent due and is subject to the same late penalties of rent due.” They told us that “manner of their choosing” would be for us and the downstairs tenant to work it out amongst ourselves.

This worked for awhile, but in the last few months the downstairs tenant hasn’t held up his end of the bargain. Recently we found out our rental company is taking him to court for failure to pay rent. Now we are stuck in a horrible situation of either covering his portion of the water bill, or risk having it shut off. In addition, if he is failing to pay his Pepco, we could lose our hot water!

It seems to me like a multiple unit building should be required to have completely separate utilities, but I haven’t been able to find anything in the DC Housing Code. Does anyone know the law/have any advice? Thanks! Answer after the jump.

Answer:

The DC housing regulations state that where a utility (such as water, electricity, gas or other fuels, or sewer or refuse service) is the responsibility of or is under the control of the landlord of any residential building, the utility shall be furnished and maintained by the owner in the quantities needed for normal occupancy. In your situation, water is considered under the control of the landlord because the building is not separately metered. If your water is turned off for any reason, your landlord would be in violation of the housing regulations.

Your landlord included fairly standard language in the lease stating that if any of the utilities are not separately metered, the landlord will equitably apportion the utility in a manner of the landlord’s choosing. That language is perfectly fine, but the problem is that the landlord has not performed its obligation under the terms of the lease. Your landlord has not equitably apportioned anything – your landlord merely told you and your neighbor to work it out, which isn’t what the lease dictates. It sounds like your landlord has hired a rental company to act for him or her and the rental company, which is probably managing numerous properties, doesn’t want to continually apportion the water bill each month, but that doesn’t negate your landlord’s or its agent’s duties under the lease and under DC law.

As for the fact that the hot water is controlled by the downstairs renter, the DC housing regulations state that where the hot water heating facility for a residential building is not under the control of the occupant of any habitation, it is the obligation of the owner of the building to provide and maintain a continuous supply of running hot water to meet normal needs. Because you do not have control of the hot water heater serving your apartment, it is the responsibility of your landlord to ensure that you have hot water. Your landlord could and should have made arrangements with the downstairs renter to account for the fact that his or her electric bill includes the cost of providing hot water to your apartment, but that was up to the landlord and the renter of the downstairs unit. If your apartment at any point does not have hot water because the downstairs neighbor has failed to pay the electric bill, your landlord would be in violation of the DC Housing Code and you should report the violation to the DC Department of Consumer and Regulatory Affairs at [email protected].

This response was prepared by Mark G. Griffin and Patrick D. Blake of Griffin & Murphy, LLP. The material contained in this response has been prepared for informational purposes only and should not be relied upon as legal advice or as a substitute for a consultation with a qualified attorney. Nothing in this response should be considered as either creating an attorney-client relationship between the reader and Griffin & Murphy, LLP or as rendering of legal advice for any specific matter.