Dear Ask the Attorney:
My lease requires that the tenant maintain utility service to the leased premises. Also, my city has an ordinance that says that a tenant cannot live somewhere without active utility service. Huntsville Utilities has shut off my tenant’s power for nonpayment. Does this mean I can call the City and have them removed from the premises?
Utility-related questions are incredibly common in my practice. Many cities, counties, and municipalities have adopted ordinances that require a residential premises to have active utility service in order to be fit for human habitation. In other words, if the utilities are shut off, no one can “live” there. Many landlords will use a power shut-off as a short cut to avoid the cost of a formal eviction procedure.
This practice is risky and not legally correct. The City of Huntsville may use its police powers – for health and safety reasons – to place limitations on a tenant’s ability to occupy or reside in the property without utilities. However, the City of Huntsville does not have the legal authority to terminate a lease agreement between two private parties. The tenant’s possessory interest, which flows from the lease contract itself, can only be terminated through a judicial process.
The landlord in the above-situation can provide the tenant with a fourteen day notice allowing the tenant the opportunity to “cure” the violation by having the utilities turned back on. If the tenant fails to do so, the landlord can file an unlawful detainer action. By-passing the formal eviction process in a power shut-off situation deprives the tenant of their due process rights and can give them a legal claim against the landlord.