Tenant Advice - General Guidance

When looking for a home to rent you will need to consider a number of things prior to entering into a tenancy agreement. You will also need to think about what questions to ask your prospective landlord. As a tenant there are also things you will need to consider and remain mindful of during your tenancy (e.g., performance obligations for the tenant and the landlord).

Upon expiration of a tenancy there are a number of things you will have to consider and be mindful of to ensure that you are not subjected to liability and costs (e.g., obtaining a professional painter prior to leaving the premises or lose all or a portion of your damage deposit).

The purpose of the following sections is to provide tenants guidance on what to consider at each stage of the tenancy process to ensure that your consumer rights are adequately protected.

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If you are considering entering into a tenancy agreement with a landlord, Consumer Affairs advises that you carefully consider the landlord, the terms and conditions contained in the tenancy agreement, and the state of the rental unit prior to signing the tenancy agreement. The following sections discuss things you should consider prior to entering into a tenancy agreement.

Before you can rent a property you will need to provide information and documents to show that you will be a good tenant. Consumer Affairs advises that, before you provide any personal information and documents, you get the landlord’s or real estate agent’s name and contact details. Consumer Affairs further advises that you do not provide the landlord or real estate agent with your banking information.

As part of the personal information and documentation that will be requested, you will often be asked to provide references to show you can afford the property and will consistently pay rent as it comes due. The references you will often be asked to provide will include:

Your current landlord and previous landlords;
Your employer to show you have a job and it will continue to remain in possession of employment.

If you are unable to provide a reference, or enough quality references, you might still be able to rent. Consumer Affairs advises that you explain to the prospective landlord or real estate agent why you are not able to provide the requested references.

Absent personal references, if you have paid rent on time in the past Consumer Affairs advises that you show the prospective landlord or real estate agent your existing tenancy agreement and a copy of redacted personal bank statements as proof of consistent payment (i.e., personal details blacked out).

If you are asked to give your recent bank statements to show your income, Consumer Affairs Advises that you make sure you cover your account numbers for security (i.e., use a permanent marker to black out personal details). If you are self-employed you might need to give copies of your trading accounts and an accountant's reference.

The prospective landlord or real estate agent may request your permission to conduct a credit check to see if you have had problems paying bills in the past. It is less common for private landlords to do credit checks because credit checks can make it take longer to rent out a property. If you have a bad credit history it is best to be honest and explain the situation.

If the landlord wishes to conduct a credit check it is important to note that the landlord has obligations under the Personal Information Protection Act 2016 and may only obtain your credit information with your permission first.

It is advised that if your landlord asks to conduct a credit check that you tell the landlord that you wish to protect your personal information and that you would like to conduct the credit check yourself.

After contacting your bank and asking them to conduct a credit check for you, it is advised that you provide the landlord with credit check documents after you have covered your account numbers for security (i.e., use a permanent marker to black out personal details).

If you fail a credit check, explain why you think this might have happened. If you know you can pay the rent, offer to pay a larger deposit, more rent or ask whether they will accept a guarantor (i.e., someone will pay for your rent arrears in the event you are unable to pay).

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If you have entered into a tenancy agreement with a landlord, Consumer Affairs appreciates that there may be instances where you may face issues with your landlord and the state of the residential unit. The following sections discuss common tenancy issues experienced and are intended to provide guidance on how to navigate these issues.

If your residential unit requires repairs your landlord is responsible for most major repairs, including:

The structure of the property (e.g., the walls, roof, windows and doors);
Sinks, baths, toilets;
Pipes and wiring;
Heating and hot water;
The safety of gas and electrical appliances

However, as a tenant of a residential unit you may be responsible for minor repairs (e.g., changing fuses and light bulbs) and anything that you or your guests may have damaged. Please note that you cannot be held responsible for repairing damage caused by other people trespassing on the property (e.g., vandalism by unknown persons illegally on the premises).

Appreciating the humid climate of Bermuda, if your home is damp your landlord may be responsible for the damage this may cause. Without the help of a property surveyor or contractor it is not always easy to determine if your landlord is responsible for resolving problems with dampness in your residential unit; unless the cause of the dampness is obvious (e.g., a leaking roof).

There are several types of dampness that residential tenants must be mindful of:

Rising Dampness: when moisture travels up from the ground through the foundation of the home to the height of about one meter (e.g., flooding);

Penetrating Dampness: when water penetrates into the fabric of a building from outside to inside (e.g., a leaking downpipe);
Construction Dampness: where dampness is caused by a problem in how the property was designed; and
Condensation Dampness: when a property can't deal with normal levels of water vapor because of a lack of insulation, ventilation or heating, or a combination of all of these things. This is a common issue in Bermuda given the high levels of humidity and many residential units being close to large bodies of water)

Rising dampness is more common in older properties and generally affects the lower part of the ground floor of a property. In many cases, your landlord is responsible for dealing with rising dampness. This is because there is a term implied into your tenancy agreement which says that it is the responsibility of the landlord to keep the exterior and structure of your residential in repair.

Additionally, your landlord might be responsible for the rising dampness if it means your home isn’t safe for you to live in (e.g., the rising dampness has made you or your family ill). Your landlord is usually responsible for repairing the problem when they become aware of it. Consumer Affairs advises that you report the problem to your landlord as soon as possible to avoid further damage.

Penetrating dampness can be caused by a number of repair problems, for example:

A leaking roof;
A cracked wall;

Leaking gutters or external pipes;
A leaking drainage pipe;
Rotten windows or doors.

In many cases the landlord is responsible for repairing the problems resulting in penetrating dampness as your landlord is responsible for maintaining the exterior and structure of your home as well as installations like basins, sinks, baths, toilets and pipework.

Additionally, your landlord might be responsible for the penetrating dampness if it means your home isn’t safe for you to live in (e.g., the penetrating dampness has made you or your family ill). Your landlord is usually responsible for repairing the problem when they become aware of it. Consumer Affairs advises that you report the problem to your landlord as soon as possible to avoid further damage.

In cases of construction dampness, if the design problem does not affect the structure or exterior of your home or cause any damage to the building, your landlord may not have a responsibility under the tenancy agreement to prevent the dampness.

However, your landlord is responsible for repairs if a design problem causes damage to the building (e.g., a wall or ceiling plaster). Additionally, your landlord might be responsible for the construction dampness if it means your home isn’t safe for you to live in (e.g., the construction dampness has made you or your family ill).

Your landlord is usually responsible for repairing the problem when they become aware of it. Consumer Affairs advises that you report the problem to your landlord as soon as possible to avoid further damage.

Condensation dampness can result in mold growth, damage to furniture and belongings. If your residential unit is subject to condensation dampness your landlord will probably be responsible for dealing with the dampness if:

Your tenancy agreement says they’re responsible
The dampness was caused by your landlord not making certain repairs to your home (e.g., failing to fix the heating or ventilation)
The dampness has caused damage to your home or belongings that your landlord has to repair or replace (e.g., clothing in your closet)

If your home has condensation dampness then how you use your home is important. Some day-to-day things that you do could make it difficult to show that your landlord is responsible.

The following things can create extra moisture or reduce ventilation:

The use of portable gas or paraffin heaters put a lot of moisture into the air;
Drying wet clothes on heaters;
Using a tumble dryer with no outside vent;
Blocking ventilation (e.g., covering air vents, closing ventilators and switching off or disabling fans);
Failure to use an air filtration system specifically design to neutralize humidity and dampness (e.g., dry setting in air conditioning unit).

Furthermore, your landlord might be responsible for the condensation dampness if it means your home isn’t safe for you to live in (e.g., the condensation dampness has made you or your family ill). Your landlord is usually responsible for repairing the problem when they become aware of it. Consumer Affairs advises that you report the problem to your landlord as soon as possible to avoid further damage.

If after asking your landlord to repair damages in your residential unit your landlord refuses to, or fails to address the problem, Consumer Affairs advises that you DO NOT withhold rent. If you stop paying rent you will go into rental arrears and your landlord may then try to evict you for breach of your tenancy agreement.

Instead of withholding rent, Consumer Affairs advises that you submit a formal complaint to Consumer Affairs. If after filing a complaint with Consumer Affairs the landlord fails to complete the repairs, Consumer Affairs advises that you consider starting legal proceedings against your landlord.

Before you pursue legal proceedings against your landlord, Consumer Affairs advises that you write to your landlord first and give them one last chance to complete the repairs or reimburse you for the costs you have incurred in order to repair the damages.

In your letter to your landlord it is advised that you inform your landlord that they have a specified period of time (e.g., 20 working days) to complete the repairs or reimburse you. Your letter should include full details of the repairs needed or the repairs you have completed at your expense, including:

What needs repairing or what has been repaired;
When you reported the problem to them and whether you have had to report it more than once.

Any problems you've had because the repairs weren't done (e.g., incurred a health condition like asthma that's gotten worse);
Any costs incurred due to you having the work completed yourself (e.g., contractor’s invoice).

Consumer Affairs advises that you keep a copy of the letter that you send to your landlord and any reply you get back from them. Your landlord might offer to do the repairs or come to a reimbursement agreement; which could be less stressful than going to court. If you cannot reach an agreement with your landlord regarding completing the repairs or reimbursement you can take them to court.

If you decide to take your landlord to court for failing to complete the requested repairs, or for failing to reimburse you for the costs to repair the damages, you will need to rely on the evidence that you gathered after first reporting the problem to your landlord (e.g., copy of letters or emails sent to your landlord, photographs of what needs/needed repairing, receipts for work performed, a copy of your tenancy agreement, expert opinions).

You are more likely to win your case if you give the court as much evidence as possible. The judge will look at the evidence you and your landlord provide the courts before making a decision.

In addition to taking your landlord to court for failing to complete the requested repairs, or for failing to reimburse you for costs incurred due to repairing the premises yourself, Consumer Affairs advises that you may also apply to the courts for a “stay in rent”. In this instance you may be awarded by the courts to withhold rent until your landlord fixes your premises or reimburses for the costs incurred due to fixing the premises yourself.

If you wish to apply for a “stay in rent” it is advised that you first confirm whether your premises fall under the Landlord and Tenant Act 1974 or the Rent Increases (Domestic Premises) Act 1978 so that your claim is filed correctly. However, Consumer Affairs Advises that you remain mindful of the fact that if you are awarded a “stay in rent” the courts will consider whether you are in rental arrears.

After you have submitted your claim form in court you will likely need to send a copy of the claim form, and any paperwork provided by the court, to your landlord. You will also be given a date for the initial hearing. Your landlord might also submit a defence against your claim.

Your landlord is likely to have a lawyer speaking on their behalf when in court. Consumer Affairs advises that you obtain your own lawyer to speak for you in court too. However, remain mindful of the fact that if you obtain your own lawyer you will have to pay for legal fees in addition to court fees.

If you win your case you might get some of your costs back. This depends on your landlord's situation. The court could order your landlord to:

Complete the requested repairs;
Pay you compensation (e.g., if your health has been affected because they didn't do the repairs or belongings were damaged due to dampness);
Pay some or all of your legal costs.

If the problem is affecting your health and/or safety, Consumer Affairs advises that you also submit a formal complaint with the Department of Environmental Health. An Environmental Health Officer will look at your home and order your landlord to do repairs if they think it’s harmful to your health or safety. Keep records of what they say or any report they write. If your home is found to be unfit to live in, you might need to find a new place to live.

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If you want to end your tenancy early you will need to provide your landlord with advance notice in the correct way (i.e., as stated in the tenancy agreement). If you fail to provide advance notice, or do so incorrectly, you might have to pay rent and other bills (i.e., utilities) even after you’ve moved out.

When and how much notice you give will depend on the type of tenancy you have and what your tenancy agreement says. If you cannot give the right amount of advance notice to your landlord you might be able to agree with your landlord to end your tenancy early. This is called 'surrendering your tenancy'.

The following sections discuss things you should consider prior to terminating a tenancy agreements.

If you wish to end your tenancy early, and there is not a “break clause” in your lease agreement, Consumer Affairs advises that you ask your landlord for permission to end the tenancy early and explain why (e.g., your work location might have changed, you might need to move to look after a relative, or you are expecting a child and need a larger residential unit).

Based on observed industry practices, many landlords are now electing to remove “break clauses” from their lease agreements. In this circumstance tenants are often faced with having to incur fees for breaking the lease agreement or face having to pay rent until the lease agreement ends.

Although you may ask for permission to end your tenancy early, your landlord does not have to agree. If they do not agree to end the tenancy early you will have to pay rent until your tenancy ends; even if you leave the property.

If you have a fixed term tenancy you can try to reach an agreement with your landlord to end your tenancy if:

You have a break clause but want to leave before it says you can or you’ve missed the deadline to use the break clause (i.e., the “break clause” may state you cannot end the tenancy within 6 months of entering the tenancy agreement)
You don’t have a break clause and you want to leave before the end of your fixed term

If you have a fixed term tenancy you could try to persuade your landlord to agree to the early termination of the tenancy if you can get another tenant to move in. This would mean your landlord wouldn't be losing any rent.

If your landlord agrees to let you get a new tenant, Consumer Affairs advises that you make sure you get your landlord’s agreement in writing. The agreement must clearly say that your tenancy has ended and a new tenancy has been created for the new tenant.

If your landlord won’t let you get a new tenant you might still be able to end your tenancy early. You could propose that if you can terminate the tenancy early you will pay part of the rent the rent was expected to be paid prior to early termination (e.g. if you have 3 months left on your fixed term agreement, your landlord might agree to let you pay just 2 months' rent instead).

If your landlord agrees to such a financial arrangement, Consumer Affairs advises that you make sure you get what you agreed to in writing; in case you need evidence later. If you have a periodic tenancy, your landlord might agree to let you give just part of your notice (e.g., if you have to give 1 months’ notice, the landlord may agree to let you give 2 weeks’ notice instead).

If your landlord agrees to have the tenancy end early, your tenancy will usually end on the last day of your fixed term or at the end of your notice period when you gave notice. Upon leaving the residential unit you will also need to give the keys back to the landlord by the end of your notice period.

If you reach an agreement with your landlord to end your tenancy early, your landlord or real estate agent acting as a property manager can charge for an “early termination” fee to cover any reasonable costs (e.g., costs to find a new tenant).

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Consumer Affairs appreciates that there will be circumstances where a tenant agrees to rent a residential unit from a landlord absent a formal tenancy agreement. The purpose of this section outlines the implied performance obligations that may be imposed on a tenant in the absence of a formal tenancy agreement, or when a formal tenancy agreement fails to include formal tenant performance requirements.

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Consumer Affairs appreciates that there will be circumstances where a tenant requires their landlord to perform maintenance and repairs to their residential unit. The purpose of this section outlines the maintenance obligations that may be imposed on a landlord in the absence of a formal tenancy agreement, or when a formal tenancy agreement fails to include formal landlord maintenance requirements.

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A sub-tenancy is created when an existing tenant (i.e., primary tenant) lets some or all of their home to another tenant (i.e., the sub-tenant). In most cases the primary tenant needs their landlord's permission before they can sublet their home. The information on this page explains more on subletting and the issues often faced by sub-letters.

If you are a sub-tenant and don't share any accommodation with the primary tenant, how the primary tenant or ‘mesne’ landlord went about subletting their home can impact you as a sub-letter.

If the primary tenant was not, or is not, allowed to sublet because their tenancy agreement with the head landlord restricts them from entering into such agreements, or if they did not get the head landlord's permission, this means that the subletting of the residential unit was done so without adequate authorization and is unlawful.

However, appreciating the position of the head landlord and the potential illegality of the relationship, as a sub-tenant you may be able to occupy the property under the sub-tenancy until:

The head landlord decides to end the tenancy agreement with the primary tenant; or
Your landlord's tenancy comes to an end.

If the primary tenant was not allowed to sublet their home, but did so anyway, they have broken their tenancy agreement with the head landlord. If the head landlord commences possession proceedings against the primary tenant because they have broken their tenancy agreement, and the primary tenant is evicted, this will affect your right as a subtenant to stay in the residential unit as a sub-letter.

If the head landlord seeks possession of the property due to the primary tenant's breach of their tenancy agreement, the sub-tenancy also ends and the head landlord is entitled to possession of the residential unit (i.e., surrender of the property). When a tenancy is surrendered, the head landlord takes back the property subject to any rights and tenancies or licences created by the outgoing tenant.

In some circumstances, as a sub-letter you may be able to get the head landlord to agree to letting you stay on as their tenant. If this happens you will be asked by the head landlord to sign a new tenancy agreement. The head landlord would then become your immediate landlord and you would become the primary tenant

You may also be able to show that the head landlord has indirectly agreed to your sub-tenancy because they've accepted rent directly from you before. By accepting rent from you acting as a sub-tenant the head landlord accepts that you have the right to occupy the property.

Another way that a head landlord can indirectly agree to a sub-tenancy is if they become aware that unlawful subletting is taking place but they don't do anything about it (e.g., they continue to accept the rent). However, Consumer Affairs cautions consumers from relying on the head landlord being knowledgeable of the sub-tenancy as it may not always be easy to prove that a landlord knew about the subletting.

If you are looking to sublet a residential unit from an existing tenant of a residential unit, Consumer Affairs advises that you confirm with the primary tenant and head landlord to verify whether the primary tenant (i.e., mesne landlord) has permission to sublet their residential unit.

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General Guidance - Tenant Advice

Overview

Entering a Tenancy

During Your Tenancy

Ending Your Tenancy

Implied Tenant Obligations Absent a Formal Tenancy Agreement

Maintenance and Repairs

Subletting