Fair Rents (Scotland) Bill or Artificial state manipulation of free market rent?10:34 AM, 6th November 2020
About 4 weeks ago 36
So you have got your tenancy agreement and read it through. You are happy with most of it but there are just one or two things you don’t like.
Is it all right for you to change them?
The answer to this will really depend on what it is you want to change, but generally you need to be really careful. Here’ why:
The Unfair Terms in Consumer Contracts Regulations
These are regulations, originally from Europe, which are there to protect consumers from those unfair clauses in contracts created by devious business lawyers. Unfortunately (for landlords) they also apply to virtually all tenancy agreements, as landlords are deemed to be acting in the course of a business, and tenants are (apart from company lets) consumers.
Here are the main big ‘no no’s’
1. The agreement must not take away a right that the tenant already had. So for example all landlords are bound by the statutory repairing obligations. Any contract term which makes the tenant responsible in any way for these, will be void.
2. Any prohibitions (other than those prohibited by law anyway, such as keeping guns or prohibited drugs on the premises) must be accompanied by wording providing for the tenant to ask permission for whatever it is, the permission not to be unreasonably refused by the landlord
3. Charges and penalties need to be reasonable in amount and reasonably incurred
4. Clauses which are very difficult for ordinary people to understand, for example because they are stuffed full of jargon or statutory references, may also be void.
5. The agreement as a whole must be reasonably easy to read – for example it should not be printed in very small font in pale colours on a white background (remember those?)
Point 1 is perhaps the main reason why landlords need to be really careful. You won’t know whether or not you are taking away a tenant’s right, unless you have a really good understanding of what those rights are in the first place.
Point 2 also gets landlords into trouble sometimes. The classic case here is pets clauses. Landlords frequently delete the special wording saying that they will never allow pets so its superfluous and just gives tenants ideas. However by doing this they are invalidating the clause altogether.
We know this as there is a case on point.
Point 3 means basically that charges should be fair. So you should only charge for how much whatever-it-is actually costs you. Sometimes for example landlords will charge interest on unpaid rent AND non payment charges, which is unfair. Charges must also be evenly balanced between landlords and tenants – for example landlords can charge for the inventory clerk checkout fee if they pay for the checkin fee (or vice versa). Needless to say landlords cannot charge tenants for things which are their responsibility – such as many types of repair.
Point 4 catches out landlords who want their agreement to sound important and so use legalese thinking it will make their agreement more ‘legal’. However it may have the opposite effect, particularly if they don’t really understand the words they are using.
Generally the trend now is to have agreements in ‘plain English’. Then everyone should be able to understand them. This is good as tenants are far more likely to read and abide by something they can actually understand.
Drafting can be tricky. Particularly as there are a lot of words in the English language which can have several meanings. So it is easy to write something which may be interpreted in a different way from that intended by you.
The problem is that you will generally not ‘see’ this, as you will be concentrating on the meaning YOU intend for it! This is why you should always get someone else to read your document, and also wait a while before you use it.
You also need to be careful, when introducing a new clauses, that it does not contradict something elsewhere in the agreement.
It is of course possible for you to amend your tenancy agreement and many landlords do this.
However you need to be very careful that you are not in fact creating a clause which is potentially invalid – which would have quite the opposite effect of what you intend. For example if you invalidate your pets clause by taking away the special wording – you tenants will technically be able to keep as many pets as they like.
Note that there is further information on the Unfair Terms in Consumer Contracts Regulations on my free Tenancy Agreement Manual. Members of my Landlord Law service can ask me questions about tenancy agreement amendments in the members discussion forum .
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