Your tenancy agreement is a very important document. Not so much because it creates the tenancy – you don’t actually need a tenancy agreement to create a tenancy with a term of under 3 years (so watch out for that).
You need a tenancy because:
- It is a record of your agreement
- You won’t be able to enforce your rights property without one and
- Because you can use it to protect your position
The limitations of a tenancy agreement
Let’s start by saying that you cannot force people to respect your tenancy agreement. Some tenants will behave badly whatever the tenancy agreement says. This is why your choice of tenant and the checking and referencing you need to do before you let anyone in are so important.
However, by and large, most people respect the law and if something is written in a tenancy agreement which they have signed, they will respect that.
A record of the agreement
The tenancy agreement will record the names of the parties, the address, the rent and the fixed term of the tenancy so there can be no argument about this.
Which is why you need to take care to ensure that these things are correct. If you put £700 rent when it should have been £800 your tenant will be perfectly entitled to pay just £700 rather than the agreed £800.
You can’t force them to change or re-sign – although they will probably be willing to do this if the rent in the agreement is too high!
Enforcing your rights
For example:
- If you do not specifically say that rent will be paid in advance, the tenant is entitled to pay rent in arrears
- If you do not set out in the tenancy the things you are entitled to deduct from your tenant’s deposit – you will not be entitled to deduct anything!
- If you do not refer to your right to evict under the grounds for possession in the Housing Act 1988 you will not be able to use these during the fixed term of the tenancy
Protecting your position
There are lots of things you can do here. For example:
Forbid pets – although see below on unfair terms
Forbid occupation by other than named tenants and household members – which will help you to comply with the right to rent rules
Specify the maximum number of occupiers – especially useful if your HMO license limits the number of occupiers
Provide for a contractual periodic tenancy if the tenants stay on after the end of the fixed term – this ensures that they remain liable for Council Tax
Unfair terms
You need to be aware however of the consumer protection rules which include rules (now in the Consumer Rights Act 2015) against ‘unfair terms’. This includes
- Clauses which take away a right a tenant would normally have under the law
- Clauses forbidding something (such as keeping a pet) a tenant would otherwise be able to do which does not provide for the tenant to be able to request permission which will not be unreasonably refused or delayed
- Clauses which are unclear or which contain jargon which ordinary people will not understand
Note – two of our Landlord Law Conference talks cover these issues. Get the recordings of both talks for the price of one via this link.
Choice of tenancy agreement
It is not the case that one tenancy agreement will fit all situations. For example although ‘bog standard’ AST agreements will suit many situations, you will need a different form of agreement for
- Company lets
- Lets of individual rooms in a shared house
- Lets by resident landlords
On my Landlord Law service I also provide different agreements for student lets and where the landlord pays the bills.
I have a free online guide on Landlord Law here where you can work out the most suitable tenancy agreement for your situation.
I hope this article has been helpful for you. If you need more information, there is a long series of articles on tenancy agreements on my Landlord Law Blog here.
In the meantime you can find me at www.landlordlaw.co.uk, my Landlord Law Blog at www.landlordlawblog.co.uk and on twitter @TessaShepperson.
Tessa Shepperson
Tessa is a lawyer specialising in landlord & tenant law and runs the popular Landlord Law online service for landlords.
The Tenancy Deposit Scheme (TDS) is a government approved scheme for the protection of tenancy deposits; we offer both insured and custodial protection. We also provide fair adjudication for disputes that arise over the tenancy deposits that we protect.
These views are those of the author alone and do not necessarily reflect the view of TDS, its officers and employees. Content is correct at the time of writing.
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