An important point to remember is that residential tenancy agreement terms must be deemed "fair" and are governed by the Unfair Terms in Consumer Contracts Regulations 1999. The Office of Fair Trading uphold many complaints about the tenancy agreements which include unfair terms.
An unfair term in a tenancy agreement may reassure the Landlord, or indeed the Tenant, on some point, but would be unenforceable at law. A Landlord cannot rely upon nor enforce anything unlawful. Many agreements [not ours] contain clauses that are simply excessive or punitive and if the Landlord enforced, could leave them open to be sued for unlawful eviction.
- Charge 5% interest per a month on outstanding monies.
- Exclusion of liability for failure to perform contractual obligations .
- Passing over/on to the Tenant the Landlord's obligations in law.
Your tenancy agreement at the very least should:
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Be legible, fair and reasonable whilst providing you maximum legal protection. Define yours and the Tenants’ rights
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Define the dwelling [property] House, flat or room being rented.
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Defines the named Tenants [permitted occupiers] and includes a clause re: guests, for renting to 3 or more tenants could deem you require planning permission [nonsense but introduced April 2010 under the planning laws].
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Define the start date, the rental period [e.g. 12 months] and the rent payable date being the 17th of each month with the amount required. As an example, rent the property address to Mr Smith for 12 months, commencing on the 17th with the rent payable on the 17th at £500 per a month, which is to be paid in advance.
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Define responsibility to maintain and repair the property - with respect to the new Housing Health and Safety Ratings System (HHSRS)
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Include information on the tenancy deposit scheme in which if applicable, the Tenant’s deposit is protected under the Housing Act 2004.
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Include overcrowding clauses, which help protect the landlord from claims against them by their local authority, on the basis that their property has become a 'licensable HMO’.
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1. Give the Landlord the right to dispose of goods left behind by the Tenant, once the tenancy has been brought to an end by voluntary surrender of the keys by the Tenant or a possession order from the courts. Without such a clause you run the risk of being sued by the Tenant for their disposal since there is deemed to be a bailment relationship. This means that the only safe way of disposing of the goods would be to make an application under the Torts (interference with Goods) Act 1977.
2. Allow the Landlord to charge the Tenant for sending out letters for rent arrears, any other breach of tenancy or any notice issued in connection with such a breach. Commonly, some agreements specify amounts which have been deemed to be unfair by the OFT because they did not represent reasonable costs and were qualified as 'penalties'.
3. Exclude the operation of the Consumer Protection (Distance Selling) Regulations 2000. This protects the landlord by making it harder for guarantors to get out of their obligation to make payment when the Tenant defaults.
4. Exclude the operation of the Contracts (Rights of Third Parties) Act 1999. This protects the Landlord by preventing other people bringing a claim against him on the Tenant's behalf (or even someone bringing a claim against the Tenant on his behalf but against his will!).
5. Specify that the address provided for service of documents on the Landlord is "in accordance with Section 48 of the Landlord and Tenant Act 1987". This removes the need for the Landlord to serve a separate Section 48, which if he fails to do, means that no rent will be payable by the Tenant!
6. Specify that the service of notices will be in accordance with Section 196 of the Law of Property Act 1925. This gives the Landlord greater rights and makes it easier for them to prove that a notice had been served.
7. Encapsulate all the grounds forfeiture, making it easier to bring possession proceedings against a Tenant to recover the property.
8. Deal with safety/conduct and tell the Tenant what they can and cannot do.
9. Qualify as a 'Data Protection Waiver'. Such a clause allows the Landlord to discuss the Tenant with any related party. For example such a clause would grant you the right to discuss a housing benefit claim that the Tenant made to the local authority.
10. Make the Tenant liable for the ‘excess’, which you incurred through a claim, made against your insurance policy, which was the Tenants fault. This allows the Landlord to recover this amount, which they otherwise could not. Sometimes the excess can be quite a high amount! |