Why your tenancy agreement is misleading – the secret clauses that you don’t know about

When a landlord gives a tenant a tenancy agreement – that agreement does not necessarily tell you the whole picture.

There may be whole areas of law which the tenancy agreement does not mention but will nevertheless apply.

There may also be terms written down in the agreement which don’t actually apply to you.

I know – its very confusing. Lets take a closer look

Things that apply whether the tenancy agreement says so or not

Because people’s homes are important, there are a lot of laws and regulations that have been passed to protect tenants.

As these sometimes involve the landlords in expense, there wouldn’t be much point in having them, if landlords could exclude them just by leaving them out of the written tenancy agreement.

So these laws specifically provide that they will apply whether or not they are written down in the tenancy agreement – and even if the landlord and tenant agree between themselves that they will not apply!

Here are the most important laws and regulations which cannot be excluded:

• The landlords repairing obligations

These are set out in section 11 of the Landlord and Tenant Act 1985. These specifically say that the landlord cannot exclude them if the term of the tenancy is for under seven years.

• The gas regulations.

These are the regulations under which landlords have to get the appliances inspected and provide a certificate to the tenant

• The tenancy deposit regulations.

These were amended in April 2012, I have written about them extensively elsewhere on this site.

There are also some ‘common law’ rules which apply. These are not set out in any act, but they are part of the legal rules which have developed over the centuries. Here are a two:

• The covenant of quiet enjoyment

This is fundamental to a tenancy and is the right for the tenant to be left in peace (it is nothing to do with being noisy or enjoying yourself).

• Notices to quit.

There are various rules relating to notices to end tenancies which are part of the common law. Some of these have been specifically excluded – for example a landlord cannot and an assured shorthold tenancy by an old style notice to quit.

But a tenant can! And indeed if he wants to end a periodic tenancy, he will have to do this – ie serve a notice on the landlord which complies with the old common law rules (basically that it must be for a complete period and end at the end of the next complete period after service).

Here are some things that may be in a tenancy agreement but which are ‘void’

• Agreements to exclude the repairing covenants.

 If a landlord puts in his tenancy agreement clauses saying that the tenant must do ALL the repairs to the property and get the gas appliances checked himself – this will, as we saw above, be void.

• ‘Unfair’ clauses.

There are also regulations, called the Unfair Terms in Consumer Contracts Regulations, which say that if a clause is ‘unfair’ it will be void and unenforceable.

So as an example, if there is a clause which says that the tenant must pay the landlord a penalty payment of £500 for every day the rent is paid late – this will be ‘unfair’ and unenforceable.

• Inapplicable clauses

Sometimes a clause may not apply simply because it does not apply to the type of tenancy or the property concerned. One obvious example is a clause which provides for the tenant to look after the garden where there is no garden.

Another example is a clause which provides for ‘forfeiture’ of an assured shorthold tenancy – as the Housing Act 1988 specifically says that forfeiture does not apply to ASTs.  We leave these clauses in just in case the tenancy ever loses its AST status (when they may be needed) – but in the meantime they can be highly misleading.

Conclusion

A tenancy agreement is supposed to be a tenants guide to how his tenancy will work.  But under the current system, if he is given a poorly drafted tenancy agreement there may be a whole sheaf of laws and obligations he has no way of finding out about – unless he studies landlord and tenant law.

This is clearly most unsatisfactory.

When the Law Commission published their Renting Homes report in 2006, they recommended, not only that tenancy agreements should be mandatory, but also that there should be a standard prescribed form of tenancy agreement.

Had this come into force it would have been a much more satisfactory state of affairs. The standard tenancy agreement form would have been in plain English, ALL its terms would have been valid, and it would have included information about ALL relavant aspects of the tenancy that the tenant needs to know. It would have made things considerably easier for both landlords and tenants.

In Wales the National Assembly is revisiting the Law Commissions report and are considering implementing them in Wales (see the white paper here pages 34 and 35).

Hopefully this will prompt the government at Westminster to revisit this project also.