While there have been major changes to landlord and tenant law over the last 20 years, the legal focus is still on protecting the rights of the tenants rather than safeguarding the landlords business interests.
Therefore, it is up to me to protect myself and my business.
Tedious as it can seem, my best protection is a thorough paper trail and the most important document is the tenancy agreement; usually an Assured Shorthold Tenancy (AST). There is no legal requirement to use written AST but any landlord who lets without one is taking a huge risk.
ASTs should be written in plain, intelligible English and should clearly state all the important details. Most off the shelf AST’s are fairly straightforward when it comes to the basics. However, I find the ‘small print’ regularly causes problems, which can be significant should problems arise down the line.
If a landlord takes a tenant to Court based on a clause in the AST, the Court will look at whether that clause is ‘fair’. If the Court decides the clause is ‘unfair’ they will remove the clause and the landlord will not be able to rely on it.
For example landlords frequently include a term like: “The tenant will not keep any pets or animals”.
Although this sounds perfectly acceptable to many, as it represents a complete ban on keeping pets, it will be classed as unfair and the landlord will be unable to rely on it in Court.
This is easily remedied though, by adding the caveat: “without the express prior written permission of the landlord which will not be unreasonably withheld”. This demonstrates that the landlord is willing to consider their tenants request and should be deemed fair.
In my 38 years as a landlord I have seen many clauses in tenancy agreements that breach consumer protection legislation.
Here are three common unenforceable clauses I have seen over the years which are almost certain to see a landlord’s case thrown out of court:
1. “Allow the landlord or his/her agent to enter the property with prospective tenants or to inspect the property, during reasonable hours, 24 hours notice will be given where possible”.
The words “where possible” cause problems here as tenants have a right to the quiet enjoyment of the property. A minimum of 24 hours written notice must be given
A landlord cannot enforce any term which requires a tenant to give the landlord access to the property. A landlord may only enter with the agreement of the tenant, or failing that a court order.
2. “At the end of the tenancy, following the return of keys to the landlord, if it is necessary for the landlord to deduct an amount from the deposit for the cost to make good any damage caused to the premises or the furniture the Landlord must inform the tenant in writing within one month of receiving keys and proof of payment of bills. The deposit will only be returned once all outstanding bills have been paid and proof of payment correspond with the final readings”.
This clause has two problems. Firstly, it breaches the Tenancy Deposit Protection rules. The undisputed amount of the deposit has to be returned within 10 working days – together with quotes and receipts to justify any amount to be withheld.
Secondly, if the tenant is the bill payer they have a separate contract with the utility provider meaning that the landlord is not responsible. Therefore you cannot require proof of payment before returning the deposit.
3. “In the event of the rent or any part of it being unpaid for more than 14 days after it has become due whether legally demanded or not if there shall be a breach of any of the obligations on the part of the tenant … the landlord may re-enter the property or any part of it in the name of the whole and immediately the tenancy shall end without prejudice to any other rights or remedies of the landlord”.
This one is straightforward – a landlord cannot repossess a property for any reason without a court order, this is misleading and cannot be relied on in court.
Do not risk writing your own agreement or using one you found on internet. Use a tenancy agreement that has been checked by legal experts to ensure that you do not fall foul of these regulations.
My advice would be to save yourself some time and trouble by using the free NLA AST on our website. Otherwise it could end up costing you hundreds if not thousands of pounds.
If you feel that you need to add clauses to this AST members can call the NLA Advice Line to make certain that your clause is legally enforceable.