You have to be very careful when amending tenancy agreements.
If the tenancy agreement is from a reputable company, such as LawPack or one of the Landlord Associations, or one of my own agreements, you are probably better off not altering it at all. Most things you will want to prohibit will be covered by general clauses in the agreement.
For example if you don’t want the tenants putting up a TV receiver dish on the outside wall, this will by covered by general clauses prohibiting any alterations to the property.
However if you are determined to change the agreement, follow these guidelines:
Guideines on amending tenancy agreements
1. If you are prohibiting something, unless it is something which is illegal anyway (such as keeping firearms illegally on the premises) it is essential that you add wording along the lines of ‘save with the landlords written consent, which will not be withheld unreasonably’. If you don’t have this you run the risk of the clause being invalid under the unfair terms regulations (now part of the Consumer Rights Act 2015) (the regulations). Which means it will be unenforceable (and there will be nothing to stop the tenant doing whatever it was you were trying to prohibit).
2. Also check that the thing you are prohibiting is not something which the tenant is entitled to as of right. As if your clause has the effect of taking away a right a tenant would otherwise have had, it will also be void under the regulations. For example see this post here about clauses requiring a tenant to give notice if he wants to leave at the end of the fixed term.
3. Make sure that your clause is even handed. If there is going to be a penalty if a tenant does something, there must also be a similar penalty if the landlord does it. Otherwise it will be unfair. And unenforceable.
4. Be very careful about penalty clauses. Any fees charged must be fair and reflect the actual cost to the landlord of action taken when tenants are in default, for example letters sent if the tenant is in arrears. Tenants will be entitled to ignore clauses which are plainly designed to intimidate and/or which impose unreasonably high fees for standard administrative actions.
5. Make sure your clause is clearly written. YOU may understand it, but will anyone else? If it is confusing then it may also be invalid. Note also that clauses with a double meaning will be interpreted by a Court (in the event of any legal dispute) in the tenants favour. Get several other people to read the clause and tell you what they think it means. You may be surprised at the answers.
Generally it is very difficult for non lawyers, or even lawyers if they do not understand this area of law properly, to draft clauses which will not be vulnerable to being found unfair. Mainly because you have to have a very good understanding of landlord and tenant law before you can spot when a clause is taking away a tenants legal right.
So be very careful. Or better still, get the amendment done by a specialist landlord and tenant lawyer. Or, if you are a Landlord Law member – ask me on the Landlord Law members forum and I will see what I can do.