This is day 16 of my 31 days of tips on tenancy agreements series. To see the rest of the series click here.
Practical aspects of the Unfair Terms regulations
The Unfair Terms in Consumer Contracts Regulations 1999 (the Regulations) were discussed on Day 15. Today we are going to look at some of the more practical aspects, 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!
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 he has 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.
Clauses taking away existing rights
We mentioned on Day 15 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 and consider the actual effect and real meaning of the words you are using. 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 the furniture and contents should be put back in the rooms they were at the start of the tenancy, to facilitate checking contents against the inventory when the tenant leaves).
- A clause prohibiting keeping any 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 tenancy agreements
There are times when you will want your tenant to be bound by terms and conditions in some other document. For example
- On day 21 we will be talking about landlords insurance policies.
- Landlords often need to make tenants comply with the terms of their own ‘head lease’, ie where the property (generally this will be a flat) is owned by them on a long lease
- Some landlords, particularly in HMO tenancies, 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.
Do you have any comments on this section? Do you have any other examples of clauses which have not been properly thought through? Have you come across any other examples of clauses which are void because they take away tenants legal rights? Can you suggest any other type of document which landlords will seek to incorporate into the terms of the tenancy agreement?
Tomorrow I will be looking at bills.
NB Read about my tenancy agreements service here.
Are you a landlord? 
Our landlord/agent claimed that a car breached the leasehold agreement of the housing development. The development representative complained that said car was a problem and letting agents are quoted as saying that us, as tenants ”breached the terms of the tenancy agreement” by keeping a car there; one parked for long periods in visitors spacing when tenants are told said spaces can be used for tenant parking and this is indeed what happens for every tenant with a second vehicle.
Obviously we as tenants had no access to the leasehold itself and were told that the contrary was true. Had we received a copy of the leasehold agreement we could have made a decision on whether to move into a property which did not readily provide access for a subsequent car.
Though our tenancy agreement also included a valiant effort to charge an unnamed amount contained in another document for a check out fee. That term’s unfairness is due to be discussed. For interest purposes the included term is as follows; ‘To pay the cost of check out at the end of the tenancy. A schedule of fees is available from the Landlord’s agent upon request’. Oft guidelines seem to suggest that merely not specifying whether a figure is inclusive or exclusive of VAT can be construed as unfair so I would hazard a guess that the above term (which in itself does not indicate inclusive or exclusive of Vat quite obviously as no figure is included at all!) would be unfair.
Hi KRM, thanks for your comment.
My understanding is that if you were not shown the terms of your landlords headlease or given any opportunity to do so, you cannot be bound by it. However this is a bit of a problem for your landlord, as he is!
The checkout fee may be valid however, as the agreement provides a way for you to find out the sum to be charged – it is available from the agent on request. Also your landlord will have paid the check in fee, so he is splitting the cost and not making you pay for it all (which would be unfair). So far as the VAT is concerned, if VAT it not mentioned then I suspect it will be implied that the figure is VAT inclusive.
Hello,
Thanks for such a quick response. I did not want to go into too many details on the original comment as it didn’t really apply to my comments, but it does apply now you have replied. There was no check in inspection. We attended the landlord’s agent’s agent’s (the agent itself is based over an hour from the property) to collect keys. An independant check in was done, for the previous tenant, in mid 2008, of which we were given a photocopy. Our tenancy began early 2009. So technically the request for payment is making us pay for it all, as we attended the property alone and nobody had checked in for our tenancy. Interestingly the check out was performed by an agent (again an agent of the agent of the landlord!) who came simultaneously for multiple purposes, to check us out/collect keys whilst taking pictures and fact finding (asking questions to us about how things worked for marketing purposes). Therefore we would dispute any full fee on the basis that our ”check out” was also their ”marketing” visit whos costs should not be covered by ourselves.
It is a sideline really as the tenancy agreement is unsigned and for the second tenancy period (two 6 month terms running one after the other) we were not even provided with an agreement.
The agents are woefully poor; a recorded mail request for the landlord’s address under the housing act went unresponded to, leading me to find the landlord’s address from the Land Registry instead to contact him.. The landlord seems woefully poor too, quoted as saying not to give them the rest of their deposit back until they agree to the deduction.
Prior to now myself and my partner have rented jointly for 8 years and although experiencing minor inconvenieces (this is life!), neither of us have ever had a complaint on letting agents or landlords.
My main reason for commentary in any form is that this website has made very interesting reading for myself as it does highlight the issues affecting decent landlords which are not far from those affecting decent tenants!
Congratulations on constructing such an inspiring resource for anyone interested in the subject on a personal or professional level.
Thank you very much for your kind comments! It sounds as if you have good cause for complaint.
I would be interested to know if the tenant is liable of the check out fee if the sum is not referenced anywhere or made transparent upfront from the start of the tenancy? Especially if the AST merely just mentions that the tenant will pay the check out fee but no amount is then stated?
My understanding is that a tenant can be made liable for the checkout fee if the landlord is responsible for the checkin fee (or vice versa).
However if the fee charged was grossly inflated I think the tenant could validly challenge this (for example if it is deducted from the deposit) particularly if the fee paid by the landlord was less.
Thank you for your response. I agree with KCM, this is such an invaluable resource and it’s good to read that individual cases are not alone. I rented a place where as far as I know, there was no check in fee as it was a private let and the landlord did the inventory themself personally. As stated by KCM, the situiation was similar in the sense that at the end of the tenancy, I was contacted by a random letting agent out of the blue that was not involved in the agreement at all (they were never stated anywhere in the agreement either. The person came with a different inventory and a camera and took shots of everything. I may add that nothing was damaged or out of order. I had not been informed of any costings. The landlord then felt it just to then come up with some costing that I had no idea of. The landlord now wants to deduct this costing from the deposit. To me that seems rather unfair and I’m not even sure if legally they can do that?
I assume your deposit is protected. If so you can challenge the deduction and ask for it to be referred to arbitration. If the deposit was not protected, see here: http://www.tenancydepositclaim.com/