In many areas (so recent reports have shown) private renting is becoming more important than social housing, particularly for middle to low income families.
But our antiquated housing law is often unsatisfactory.
Take the tenancy agreement for example.
When renting, most people would agree that a tenancy agreement is essential:
- as a record of what was agreed (so it is clear, for example that the agreed rent was £500 per month not £550 per month)
- as a document setting out the parties rights and obligations (so they know where they stand) and
- as a legal record to prove the existence of the tenancy (for example for housing benefit purposes or in court proceedings)
However under our current laws, a tenancy agreement is not a legal requirement!
- There is an obligation in 20A of the Housing Act 1988 for landlords to provide various details upon written request – however very few people know about this and the penalty is a criminal one – few tenants will want to bring a prosecution in the Magistrates Courts, and Local Authorities (the normal prosecuting authority) are generally too busy and understaffed to assist.
- There is also a right under s48 of the Landlord & Tenant Act 1987 for tenants to withhold rent if they are not given notice of an address at which to serve notices on their landlord – but although useful, that is not the same has having a proper tenancy agreement.
However tenants (and also landlords) need to know where they stand.
As I discuss in this post on tenancy agreements, there are two other problems with our current laws:
- The tenancy agreement does not tell the whole story – many laws are incorporated into a tenancy even if they are not written down in the agreement. The landlords repairing obligations for example
- The clauses in the tenancy may be unenforceable – the Unfair Terms in Consumer Contracts Regulations make any clause which is ‘unfair’ void. However sometimes it is difficult to know if the regulations apply to any one clause until after a court case – and who wants to go to court to find out if their tenancy clause is enforceable or not?
- If you don’t have a written agreement – there are rules which apply, but most people either don’t know they exist or if they do, know exactly what they are. And it is not that easy to find out.
Past mandatory tenancy agreement recommendations
This has been considered in the past:
- The Law Commission in their final Renting Homes report recommended mandatory tenancy agreements, largely in a prescribed format, along with the right for tenants to withhold rent for up to two months if one was not provided. However that report has been kicked into the long grass
- The previous governments indicated they were considering mandatory tenancy agreements when they announced their plans for the private rented sector in February 2010.
What should be done?
I think that any new rules or legislation regarding tenancy ageements should try to overcome the two biggest problems. Here are my suggestions:
The need to prove the tenancy – I think the Law Commission’s suggestion here that tenants can withhold a certain amount of rent until an agreed tenancy agreement is provided, is the best sollution and the one most likley to make landlords comply
The need for parties to know their rights and obligations – it would be helpful if there were some prescribed clauses which would be incorporated into all tenancy agreements – and which would also apply by default if there is no written agreement. These could include:
- the covenant of quiet enjoyment
- the landlords repairing obligations
- the rules regarding tenancy deposits
- the need for landlords to use ‘due process’ to get possession – ie obtain a court order first and use the court bailiffs or sheriffs
and so on.
This could also be easily available for example downloadable from the Internet and available in courts and Citizens Advice Bureaus etc.
These two initiatives would go some way towards solving the problem. What do you think?