In many areas (so recent reports have shown) private renting is becoming more important than social housing, particularly for middle to low income families.
But our antiquated housing law is often unsatisfactory.
Take the tenancy agreement for example.
When renting, most people would agree that a tenancy agreement is essential:
- as a record of what was agreed (so it is clear, for example that the agreed rent was £500 per month not £550 per month)
- as a document setting out the parties rights and obligations (so they know where they stand) and
- as a legal record to prove the existence of the tenancy (for example for housing benefit purposes or in court proceedings)
However under our current laws, a tenancy agreement is not a legal requirement!
- There is an obligation in 20A of the Housing Act 1988 for landlords to provide various details upon written request – however very few people know about this and the penalty is a criminal one – few tenants will want to bring a prosecution in the Magistrates Courts, and Local Authorities (the normal prosecuting authority) are generally too busy and understaffed to assist.
- There is also a right under s48 of the Landlord & Tenant Act 1987 for tenants to withhold rent if they are not given notice of an address at which to serve notices on their landlord – but although useful, that is not the same has having a proper tenancy agreement.
However tenants (and also landlords) need to know where they stand.
As I discuss in this post on tenancy agreements, there are two other problems with our current laws:
- The tenancy agreement does not tell the whole story – many laws are incorporated into a tenancy even if they are not written down in the agreement. The landlords repairing obligations for example
- The clauses in the tenancy may be unenforceable – the Unfair Terms in Consumer Contracts Regulations make any clause which is ‘unfair’ void. However sometimes it is difficult to know if the regulations apply to any one clause until after a court case – and who wants to go to court to find out if their tenancy clause is enforceable or not?
- If you don’t have a written agreement – there are rules which apply, but most people either don’t know they exist or if they do, know exactly what they are. And it is not that easy to find out.
Past mandatory tenancy agreement recommendations
This has been considered in the past:
- The Law Commission in their final Renting Homes report recommended mandatory tenancy agreements, largely in a prescribed format, along with the right for tenants to withhold rent for up to two months if one was not provided. However that report has been kicked into the long grass
- The previous governments indicated they were considering mandatory tenancy agreements when they announced their plans for the private rented sector in February 2010.
What should be done?
I think that any new rules or legislation regarding tenancy ageements should try to overcome the two biggest problems. Here are my suggestions:
The need to prove the tenancy – I think the Law Commission’s suggestion here that tenants can withhold a certain amount of rent until an agreed tenancy agreement is provided, is the best sollution and the one most likley to make landlords comply
The need for parties to know their rights and obligations – it would be helpful if there were some prescribed clauses which would be incorporated into all tenancy agreements – and which would also apply by default if there is no written agreement. These could include:
- the covenant of quiet enjoyment
- the landlords repairing obligations
- the rules regarding tenancy deposits
- the need for landlords to use ‘due process’ to get possession – ie obtain a court order first and use the court bailiffs or sheriffs
and so on.
This could also be easily available for example downloadable from the Internet and available in courts and Citizens Advice Bureaus etc.
These two initiatives would go some way towards solving the problem. What do you think?
For once I disagree Tessa. I think tenants witholding their rent will only lead to retaliatory eviction, as you wrote about last week.
While Assured Shorthold Tenancies exist tenants have no lawful power at all when even to exercise their legal right results in the loss of their home.
I would simply make tenancy agreements mandatory OR, set a condition where a landlord cannot apply for possession without one. The latter being the easiest solution
Due to my horrendous experience as a landlord whose tenant really knew how to play the system; I would set a condition whereby when a tenancy agreement ended…. so be it. End of. Why have an agreement that ended tomorrow if a tenant can continue to remain in my property beyond tomorrow and costs me a fortune to get the tenant to move out? Sorry but an agreement is an agreement.
If landlords could not use s21 AND tenants could withhold rent then landlords would not be able to retaliate by eviction …
Even better. Like the rent strike system in Baltimore I worte about in my newsround last week. If a landlord doenst do their repairs the tenant pays their rent into an escrow account that can only be released by the courts, when statisfied that the works have been done. You could use this system for a number of things and have it administered by the RPT or the council rather than burden the courts. This might go some way to eliminating retailatory eviction and give tenants some power over their circumstances
For once I agree with Ben and his first post. Once rent is withheld it has a nasty habit of being spent on something else.
Many of the problems you allude to Tessa could be obviated if Landlords used a decent tenancy agreement that had suitable detail in it. The current one I recommend including all the TDP and PI etc stuff now stretchesd to 27 pages.
But that’s what is needed to do the job properly – not some 5 page wonder as I often see.
We don’t need all Housing Law reqriting Tessa – what we need is for agents and especially private Landlords to start doing the job properly within the existing law.
@Consumer – I sympathise but I am afraid that is not possible. Under s5 of the Housing Act 1988 tenants are entitled to stay on in a property as of right after the end of the fixed term – any attempt by the landlord to change this in the tenancy agreement will be null and void under the Unfair Terms in Consumer Contracts Regulations 1999.
The only way to deal is to serve a s21 notice two months before the end of the fixed term and then you can issue proceedings immediately if they don’t go.
@Industry Observer – but many of them don’t do they?
It has taken over 8 months to get my home back with a Section 21 issued by agent, with court proceedings immediately started by a solicitor. Section 21 was deemed incorrect by Judge and another Section 21 had to be sent to tenant who was by then in a periodic tenancy. Possession was granted mid-July after which a warrant for eviction was obtained. Tenant has just vacated prior to Bailiff who was due to attend the property this week. The entire affair has been a nightmare and the tenant got a council house out of it as well as free legal advice etc. In my humble opinion, the tenant knew exactly how to play the system and stayed one step ahead (with Council, CAB help). What did I get? A large bill from an incompetent lawyer and illness caused by the stress of it all. From what I have read, the law is in favour of the tenant.
I think here should only be 1 tenancy agreement written by the government and FOC. It should be in plain english and set out all the legal requirements on both the tenant and landlord. An accompanying booklet could go into further details and give examples of landlord and tenant duties.
There should be only one section where it can be customised by the landlord / tenant to allow clauses such as no smoking, no pets etc to be left in or deleted.
All new tenancies would be assumed to be covered by it even if they were oral.
Serious deliberate breaches of the agreement (by both landlords and tenants) need to be criminal not civil cases with prison an option. Bad tenants and landlords are costing the good ones a fortune at the moment so if we need to build more prisons so be it, I think in the long run it would save money.
Dave
No Tessa – but that doesn’t mean the law is flawed.
As I always say the solution to the vast majority of problems is usually blindingly obvious. It is the will or ability to implement that is often the problem.
So stop private Landlords renting other than through a regulated, authorised agent who is regulated and authorised by some meaningful body with real teeth.
@Consumer – I’m sorry you had bad luck with your solicitor but thats not the fault of the legal system.
There is no need for any landlord to pay a fortune for legal expenses for eviction – my Landlord Law site has a very comprehensive do it yourself kit for +Plus members (+Plus membership starts at £96 for 6 months), back up by me being available to answer quick questions, or more detailed questions for an extra modest fixed fee: http://www.landlordlaw.co.uk/about-our-eviction-service.
@Industry Observer – this series is just a series of ideas for discussion. Your comments about using regulated agents was covered in earlier posts in the series.
I don’t think landlords would like it if they were forced to rent ONLY through agents – particularly when many landlords provide an excellent service…
What about including tenants repairing obligations. Most tenants do not realise they too have repairing obligations
We need all agreements to be clear, short, and legally valid including spelling out the rights both sides have from laws and common law.
Most tenancies are already regulated by a deposit protection scheme, so way not make the deposit protection scheme also responsibly for approving the tenancies agreement?
There would there also need to be a requirement to protect a deposit of £0.
An accompanying booklet approved by the Plain English Campaign, should be sent to both the landlord and the tenant by the deposit protection scheme.