The problem with the law is that it changes. The problem with documentation is that it needs to change to keep up with the law.
This applies to tenancy agreements too.
For example, in recent years I have had to amend my tenancy agreements to take into account:
- The right to rent check rules – my tenancy agreements now have landlord protection built into them
- The smoke alarm regulations
- The rules regarding ‘home businesses’
And so on.
I tend to review my tenancy agreements about once or sometimes twice a year. Although in some years I have not needed to do any changes. But
What about YOUR tenancy agreement?
Many tenancy agreements could do with an overhaul though even if there is no change in the law. Often they are extremely confusing documents, particularly if they have frequently been amended on an ad hoc basis by non-lawyers.
As a legal adviser over many years, I must have seen hundreds of tenancy agreements. Here are some of the main problems I have noted:
Jumbled up clauses.
Many tenancy agreements have no proper order. Clauses on similar topics are randomly scattered across the document making them hard to find. Sometimes this means that issues have been duplicated making interpretation of the document as a whole difficult.
Many tenancy agreements will have several main clause numbers – 1, 2, 3 etc but each of them with many sub clauses. Often I have been looking at a page of sub clauses where it is unclear whether (k) is a sub clause of section 1 or section 3 (for example).
These are generally clauses such as break clauses or rent repayment clauses where something has to be done by one of the parties. In order to make the document usable, these clauses should be clear.
However, I have seen many clauses which have been anything but – for example where conditions have been put in – requirements to serve notices on specific dates for example in conjunction with other obscure requirements – which can make the clause virtually unusable.
A clause which is so complex that no-one can use it helps no-one.
Jargon and pompous language.
For lawyers, jargon is often good. It is generally a term which has a precise legal meaning which makes it easier for lawyers to interpret.
Many other words and phrases, ‘hereinbefore mentioned’ ‘as aforesaid’ and so on were used when documents had to be written out by hand and are actually verbal shortcuts used to save words.
However, with documents aimed at consumers, their effect is to make them unclear. They are also in breach of the Unfair Terms regulations (now part of the Consumer Rights Act 2015) and so should be avoided whenever possible.
Being too specific
This is one reason why many tenancy agreements are very long.
For example, a landlord may have a problem with tenants putting things on the walls with blue tac. So the tenancy agreement is amended to include a clause prohibiting the use of blue tac. Then maybe another landlord will have a problem with tenants putting satellite dishes on the walls. So will have a clause prohibiting that. And so on.
There are two problems with this:
- The tenancy will be interpreted strictly so things not mentioned will be deemed to be allowed – which will not happen with a well drafted general clause
- Clauses which are too specific may be invalid anyway under the Unfair Terms regulations as being an unreasonable interference with the tenants’ use of the property, particularly if they do not provide for tenants to request permission to do what-ever-it-is (permission not to be delayed or unreasonably refused) – see Day 17 in this series.
Doing your own review
There is a lot you can do yourself to make your tenancy agreement an easier document. For example:
Put all your clauses on the same topic in the same section.
For example, my tenancy agreement has sections on payments, deposits, the condition of the property and disrepair, health and safety etc. Give the sections headings and at a stroke, your tenancy agreement will be considerably easier to use.
Use a clearer numbering system.
The one I prefer goes like this:
1.1 First section
1.2 Second section
1.2.1 First subsection
1.2.2 Second subsection
2.1 First section
Using this system, you always know where you are in the document.
Read your clauses
Do they make sense? If they are unclear or ambiguous then they need to be replaced. Either get a lawyer to do it or, if you must do it yourself, just make them very simple. Get other people to read them and tell you what they think it means. This will often reveal unnoticed ambiguities.
Remember an ambiguous clause will generally be interpreted against the party which drafted the document.
(NB One of the services I provide to Landlord Law members is to help them with requests for new clauses in the Members Forum area).
Provide explanations for jargon
This means you can keep your legal phrases but your tenants will know what they mean.
Use general clauses and house rules
Using general clauses in your tenancy agreement will mean that there is less chance that things will be left out or deemed excluded. A good ploy is to couple this with ‘house rules’ for your particular property. That is where you can specifically prohibit blue tac, or explain how to avoid condensation.
The house rules can easily be incorporated into your tenancy agreement by specifically referring to it – for example
This tenancy is also subject to the house rules annexed to this agreement marked ‘A’
Get the tenants to initial and date it when they sign the tenancy agreement and you are set.
If you have done quite a few changes in your review it may be an idea to get the document checked by a housing lawyer.
This should not be necessary if you have just re-ordered the clauses. However, if you have done any re-drafting you should get someone who knows what they are doing to check it for you to make sure you have not made things worse for yourself.
Amateur drafting has often rebounded upon the draftsperson in unfortunate ways which can be expensive. So be careful.
Once your tenancy agreement has been put into a clear and easy to use format this will also make it easier to adapt it when legal changes come in. For example, if there is a change in health and safety law – you will know that you only have to check the clauses in your health and safety section.
It will also reduce your solicitor’s bill if you ask them to amend your tenancy to reflect legal changes – as it will make it an easier job for them.
Or you can, of course, use the Landlord Law tenancy agreements where I have incorporated these ideas and drafting procedures and which are regularly reviewed and updated.
NB Find out more about my Tenancy Agreement Service on Landlord Law