Practical aspects of Unfair Terms in your tenancy agreement

The Unfair Terms rules (now part of the Consumer Rights Act 2015)  (the Regulations) were discussed on Day 16.

Today we are going to look at how these rules affect Tenancy Agreement clauses in practice, including one aspect in particular which often causes confusion.  This is the special wording which needs to be included in tenancy agreement clauses which are prohibiting something.

Prohibitions

The rule is that these clauses should include wording, something along the lines of ‘other than with the written permission of the landlord, which will not be unreasonably refused’.

This wording is important as it prevents the clause from being unfair.  It must be included, even if you are certain that you will never permit whatever it is. If you omit the wording, the clause will almost certainly be invalid – which is the complete opposite of what you want!

Example – pets clauses

The classic example is a clause prohibiting pets.  “I will never allow pets in my property” a landlord might declare, crossing the clause out with his pen as he does so.  However, the effect of this is that the clause will be void under the Regulations, entitling the tenants to have whatever messy and noisy pets they like.

We know that this type of wording is required with clauses prohibiting pets as there is legal authority for this.  In a case in Spain (which applies here as these regulations come from a European directive) the Judge said that an outright prohibition would be unfair as it would stop a tenant keeping a goldfish in a bowl.

However, the rule will apply to other prohibitions, for example, prohibitions against re-decoration, repainting the walls in a different colour, or using the tenants own heating appliances.

It is important to remember, the fact that the tenant is entitled to ask permission for something, does not mean that the landlord has *got* to grant it.  So long as you have a reasonable reason for refusal, and (preferably) this is documented, there should be no problem.  There usually will be a reasonable reason, otherwise, you would not have wanted to prohibit whatever-it-is in the first place.

The only cases where the wording will not be necessary is where the action is illegal anyway, such as keeping prohibited drugs or firearms on the premises, using the property for an illegal purpose, or causing a nuisance to neighbours.

Tenancy agreement clauses taking away existing rights

We mentioned on Day 16 that any clause which takes away a right a tenant would otherwise have had is likely to be void under the regulations.

This is why it is so dangerous for non-lawyers to draft or adapt tenancy agreements (and dangerous also for lawyers who are not housing specialists).  Because it is difficult to avoid clauses which take away a tenant’s legal rights unless you have a very good working knowledge of what those rights are in the first place.

For example, clauses are likely to be void if they:

• Make the tenant responsible (even if only obliquely) for anything within the landlords statutory repairing covenants

• Say that rent shall be paid ‘without any set off’, as tenants have a legal right to set off in some circumstances

• Attempt to make the tenant responsible for arranging for the annual gas safety check and any repairs to gas appliances

and so on.

Avoiding inadvertent unfairness

Anyone drafting a tenancy agreement needs to think clearly and consider the actual effect and real meaning of the words being used.  For example

• A clause which prohibits removing any plants from the garden will also prohibit weeding

• A clause which prohibits tenants moving the furniture to another room, will include things like kitchen chairs, which is plainly unfair and unrealistic  (better to stipulate that at the end of the tenancy the furniture and contents should be put back in the rooms they were at the start, to facilitate checking contents against the inventory when the tenant leaves).

• A clause prohibiting keeping combustible materials on the premises would include matches (which would be unfair)

When drafting it is very difficult to prevent this sort of thing creeping in.  Often you are so concentrated on what you are seeking to do,  that it can blind you to the words’ other meanings.  Be particularly wary about adding things on the spur of the moment.

Incorporating other documents into a tenancy agreement

There are times when you will want your tenant to be bound by terms and conditions in some other document.  For example

• Landlords’ insurance policies.

• A ‘head lease’, where the property (generally this will be a flat) is owned by the landlord on a long lease

• Some landlords, particularly in HMO tenancies, also want tenants to also be bound by ‘house rules’

However, you cannot expect tenants to abide by terms and conditions they have never seen.  Therefore you will need to provide them with a copy of the document, or an extract of the terms that will affect them.  Ideally, this should be attached to the tenancy agreement and kept with it.

Attempts to bind tenants by the contents of any document which they have not actually seen will always be considered unfair, and it will always be necessary for you to provide a copy of the document concerned.