The property column

When you don’t look at the small print

Liz Hodgkinson advises on tenants signing unreasonable clauses

Tenancy agreements tend to be long and complicated and, as such, most tenants just sign without even looking at them. Then much later they might discover to their horror that they have agreed to redecorate the place completely, employ a gardener or have given the landlord permission to enter the premises at any time.

Can tenants be made to adhere to a clause just because they have signed it?
The answer now is no, if the agreement contains clauses which are blatantly unfair.

As long ago as 1999, the Office of Fair Trading produced its Guidance on unfair terms in tenancy agreements. This unwieldy document resulted in two or three years of legal wrangling between the OFT and the lettings industry, with the result that at last, clear information is available to both tenant and landlord on what is and what is not an unfair term.

• The landlord placing the burden of repairs and maintenance on the tenant; this is the landlord’s responsibility
• Insisting that the tenant takes out insurance
• Making tenants liable for hidden terms in the landlord’s insurance policy
• Landlords not giving notice of inspection visits, when notice must be not only reasonable but in writing
• Terms not making it clear that a court order is necessary to evict a tenant
• Clauses stating that the tenant is liable for all damages and breakages, not just those caused by himself or guests
• Agreements couched in legalese or archaic language. The document must be drawn up in plain English
• An absolute prohibition on keeping a pet
• Stipulating that tenants must pay for professional cleaning of the property at the end of the term
• Terms which make tenants hand the property back in a better state than they received it
• Any penalty or interest charges for late payment of rent
• Having overnight guests to stay
• An absolute prohibition on hanging pictures

It remains up to the tenant to winkle out the offending clause and take action, but help is now available. Any tenant who believes a particular clause to be unfair can complain to the local Trading Standards Service, or the OFT, who will examine the contract. If considered unfair, these official bodies will contact the landlord and point out the offending clauses.

If the landlord refuses to amend the contract, he or she can be taken to court by the tenant. The OFT can advise on legal action, but will not go to court on your behalf.
An ‘unfair term’ does not involve rent matters. Tenants who have agreed to pay the stated rent must pay it, as this is considered a matter for individual negotiation, and outside the remit of the OFT. The landlord is also entitled to raise the rent when the tenancy comes up for renewal.

The concept of unfair terms also applies only to standard contracts, not to those individually negotiated between landlord and tenant. Malcolm Harrison of the Association of Residential Letting Agents (ARLA) explains: “Landlords or agents still have perfect freedom to put in whatever clause they like, reasonable or not, provided this is separately negotiated and freely entered into by the tenant.

“You are no longer allowed to hide away unfair terms in small print or legal jargon, but if the landlord has a beautiful garden, for instance, he could insist that the tenant employs a gardener. This would be an unfair term in a standard contract, but if the tenant is made aware of it and agrees to it, it then becomes binding. Or, in cases of disability, the tenant might agree to put in a stairlift or adapt a bath at his own expense.”

The OFT leaflet: Unfair Tenancy Terms: Don’t get Caught Out can be obtained by calling 0870 60 60 3231 or visiting the website www.oft.gov.uk.
To complain about landlords’ unfair terms, email unfair.terms@oft.gov.uk

The Legal Services Commission’s leaflet, Renting and Letting: Rights for Landlords and Tenants can be obtained by telephoning: 0845 3000 343
 

Liz Hodgkinson is the author of

The Complete Guide to Letting Property

 

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