Tenants' Rights
It is no longer safe to write into a tenancy agreement anything that contravenes the OFT'S guidelines on unfair tenancy terms. This means that all tenancy agreements must be worded carefully and with due regard to pertinent legislation. To comply, tenancy agreements:
- Must be written without ambiguity and in plain language that tenants are able to understand.
- Must not force unreasonable prohibitions on tenants. For example, a clause that states 'the tenant must not keep inflammable materials on the premises' prohibits them from storing a box of matches. This is clearly not reasonable and should be better phrased to guard against the storage of materials presenting a genuine fire-hazard.
- Must not force unreasonable obligations on tenants. For example, a clause which states 'the tenant must keep the furnishings clean and dusted at all times' is unreasonable, as very few people keep their home dust-free at all times.
- Should not assume a tenant's comprehension of what is written. For example, the declaration 'I have read and fully understand... ' is unsafe because in practice few tenants read or fully understand all aspects of a tenancy agreement.
- Declarations might be more acceptable if they begin with 'The tenant should read and understand the terms before signing...'.
- Must not exclude the tenant from assigning or subletting.
- Landlords have a vested interest in preventing their property falling into the hands of unsuitable sub-tenants but, without vetting them, how can they know whether they are unsuitable or not? Global terms are likely to be unacceptable in law, whereas a clause that allows the tenant to sublet in certain circumstances and following a set procedure is more likely to gain favour.
These are just a few of the conditions and examples given in the OFT guide. There are additional contract and consumer laws that affect the way in which tenancy agreements are worded and the clauses they can legally contain. It is also worth bearing in mind that, whatever is written into an agreement, statute law takes precedence. A tenancy agreement clause cannot override the legal protection afforded to tenants. However, it may frustrate, confuse or invalidate the entire agreement if it has to be submitted to the courts as evidence. Agreements should always be approved by a solicitor experienced in this area of law before being used, regardless of the source.
