Unfair contract terms in proposed tenancy agreement

Unfair contract terms in proposed tenancy agreement

12:58 PM, 7th February 2014, About 8 years ago 37

Text Size

Hello All,

I’m hoping someone can maybe help me. I’ve recently moved to Brighton, where the property market is very buoyant. I am moving into a property next week with a Letting Agency. There are some (what I consider to be) very OTT clauses in the agreement, and I’m wondering if anyone knows if they are legally enforceable? Do I have the right to ask for them to be altered? It seems the Letting Agency can do what they like.

I am concerned about the following:

“Not hold or conduct any social gathering at the Property or to use or permit to be used in the premises any piano, pianola, radio or television set, loudspeaker, gramophone, record player, tape recorder, MP3 speaker system, computer stereo or any mechanical or musical or other instrument or contrivance of any kind or any washing machine, spin dryer, refrigerator or other machine of any kind (in such a manner as aforesaid) to practice or permit singing or any other noise which may disturb in the premises so as to be audible or cause nuisance to Neighbours and in particular during the Night Hours – before nine a.m. in the morning or after nine p.m. at night”

– The problem is I am a musician, so will have instruments in the property – no piano, pianola or grammophone, but I will also have a TV and a washing machine and a fridge. And I sing in the shower. I have lived in rented accommodation for many years and never had any complaints about noise. I can understand the need to have a clause about not causing a nuisance to neighbours, but if I have any musical instruments, a TV, washing machine, MP3 player or fridge in use in the house, it seems this will make me in breach of contract. Unfair contract terms in proposed tenancy agreement

“Keep clean the windows of the premises at regular intervals and replace all broken or cracked glass, regardless of how breakage or damage occurred”.

I think it’s fair enough to replace if we have caused them to break, but this looks like the landlord could potentially sit outside with an air rifle taking pot shots whenever he wants the windows replaced.

“Notify the Landlord or his agent forthwith in writing of any defect in the property which is the responsibility of the Landlord. Repairs which need urgent attention must be reported by telephone (any leaks or escapes of water / failure of heating and hot water apparatus). The Tenant must not in any circumstances affect repairs or give instructions for any such repairs without the Landlord’s written consent otherwise the Tenant shall be responsible for the cost of any repairs carried out in breach of this provision. The Landlord will not offer compensation in any form or reduction of rent to any tenants in respect of repairs issues, unless the right to the same is specifically implied by statute or the Court. If any defects are not reported in a timely fashion then the tenant must repair or bear the cost to repair any damage caused as a result of the Tenant not notifying the Landlord, or bear cost of any increase in repair costs that are as a direct result of the Tenants failure to notify the Landlord. The Landlords obligation to carry out repairs is applicable only to repairs reported in writing, as per current legislation”.

This sounds like we will be likely to be stuck with no repair for weeks on end…

Finally “Not erect external aerials or satellite dishes”

There is already a satellite dish on the property – which we didn’t erect. But I’m concerned that will also immediately make us in breach of contract.

Please advise. I have never had such a prescriptive contract before. The agency already charged us £150 each to perform a reference check, and the contract mentions another £50 contract fee, on top of a £200 holding fee for the property.

Please help!

Thanks

Maggie



Comments

by Mark Alexander

13:12 PM, 7th February 2014, About 8 years ago

Hi Maggie

I must begin by telling you that I am not insured to provide you with legal advice and if in doubt, consult a solicitor and do not rely on opinions posted on forums.

Having said that, I do know quite a lot about UTCCR (Unfair Terms In Consumer Contract Regulations) and all four of the clauses that you have cited are likely to be ruled as unenforceable by a Court in my humble opinion,. Please see >>> http://www.legislation.gov.uk/uksi/1999/2083/contents/made

So the next question is probably what should you do? If you possible can I would advise you to walk away but that may be easier said than done. A question to ask yourself though is this; if the letting agent is proving to be such an amateur at this stage what other horrors and legal battles will you face if you go ahead with the tenancy?

If you are worried about losing your referencing fees, in my opinion, you have a very good chance of being able to recover them via the Small Claims Court which is easy to do yourself. I am saying this on the assumption that you were not made privy to the contents of the tenancy agreement until the referencing fees had been paid.

If you do decide to proceed with this agent then expect to have to deal with them in Court or arbitration at some point.

Have you considered reporting this agent to their local trading standards office and checking their reviews and posting one of your own on the All-Agents website which is the equivalent to Trip Adviser for estate and letting agents? See >>> http://www.allagents.co.uk/

Whatever you decide to do I wish you the best of luck.
.

by Industry Observer

13:36 PM, 7th February 2014, About 8 years ago

Maggie

Here are your answers

“Not hold or conduct any social gathering at the Property and in particular during the Night Hours – before nine a.m. in the morning or after nine p.m. at night”

Totally unenforceable and OFT would strike it out. It is in effect saying you can’t do it at all, which in 20 years and some dopey agreements I have never seen. If timings are stated it has to be after 11pm and before 8a.m. (have had this myself from OFT)

“Keep clean the windows of the premises at regular intervals and replace all broken or cracked glass, regardless of how breakage or damage occurred”.

You can only be obliged to clean up to first floor level. Not on 4th floor in a flat are you? The second part is unenforceable – what happens if the frames rot and the glass drops out?!!

“ The Landlord will not offer compensation in any form or reduction of rent to any tenants in respect of repairs issues, unless the right to the same is specifically implied by statute or the Court. If any defects are not reported in a timely fashion then the tenant must repair or bear the cost to repair any damage caused as a result of the Tenant not notifying the Landlord, or bear cost of any increase in repair costs that are as a direct result of the Tenants failure to notify the Landlord. The Landlords obligation to carry out repairs is applicable only to repairs reported in writing, as per current legislation”.

This part of this clause is almost certainly unenforceable

Finally “Not erect external aerials or satellite dishes”

There is already a satellite dish on the property – which we didn’t erect. But I’m concerned that will also immediately make us in breach of contract.

You can’t be if you didn’t erect it. They can’t be that worried if they haven’t already insisted it is removed.

by Mark Alexander

13:50 PM, 7th February 2014, About 8 years ago

Reply to the comment left by "Industry Observer " at "07/02/2014 - 13:36":

Welcome back! 🙂
.

by Mark Alexander

13:59 PM, 7th February 2014, About 8 years ago

Just to clarify the point regarding erection of aerialsand satellite dishes. This IS legally enforceable but I agree with Industry Observer, if it is already there that's not your problem.

Just one further piece of advice I would offer. If you do go ahead and rent this property, for your own protection I strongly recommend that you obtain a professional and independent inventory report of your own when you check in and again on the day of check out. They are not expensive and may well help you to get your deposit back if there is a dispute. Don't get a DIY kit, employ a professional. They are easy for you to find via a Google search for "inventory clerk Brighton"
.

by Mark Crampton Smith

14:04 PM, 7th February 2014, About 8 years ago

Agree with Industry Observer. Would only add that you should check that the agent belongs to some professional body; ARLA RICS or NAEA would be comfiorting....... given that the contract looks as if it was put together by a provincial solictiors in the sixties, it may be that the agent are not particularly well versed with current legislation in other areas. You might therefore want to politely enquire which scheme they are using for registering the deposit and whether their contract with your landlorsd is for let only or full management?

by Industry Observer

14:12 PM, 7th February 2014, About 8 years ago

@ Mark A

Stop it!!

@ Mark CS

Agree 100% it does look a bit of a mish mash wonder what the other clauses look like!!

by Romain Garcin

14:14 PM, 7th February 2014, About 8 years ago

Window repairs are a statutory obligation of the landlord, and statute furthermore explicitly states that any covenant to the contrary in tenancy agreement/lease has no effect.
So that clause has indeed no effect.

I think that they have a point re. notification of issues and repairs: You must notify the landlord promptly of any required repair, his obligation only kicks in when notified (they are correct on that).
As a tenant you are also expected to minimise damages so if there is a leak but you wait months to report it, I can see a case for the landlord to hold you liable for the excess damage.

by Mark Alexander

14:16 PM, 7th February 2014, About 8 years ago

Could this be the first ever thread where we all actually agree on something? LOL
.

by Jeremy Smith

14:21 PM, 7th February 2014, About 8 years ago

Maggie! Oh no!....don't do it....

- So, according to this, you can't have a tele, a washing machine, a fridge, nor anything which constitutes a machine, ie a computer, nor anything with a speaker! (includes computers, mobile phone, radio) you can't sing or play your instruments, you can't have friends round....
it says, "in particular", between 9pm and 9am, but it doens't say limited to between those hours, perhaps they will try to enforce it during the day also.!!

...So what will you do in this place ? - Sit on a box in the middle of an empty room by the sound of it !!

Walk away whilst you can Maggie.

- Good advice to seek recompense through the small claims court, for your expenses so far.

Perhaps the property is never rented out and the agent just collects referencing fees and holding deposits, since no-one can reasonably live in a place with those terms and conditions !!

If this is in a block, perhaps where they own others, knock on a few doors and meet the neighbours, just say you're thinking of renting the place, see what they have to say about it, maybe they are the problem, perhaps they complain about everything, you don't want to live with neighbours like that, or perhaps they know if he/she is a nasty landlord, or agent?

This in All IMO only - I am not qualified to give advice.

by Industry Observer

14:29 PM, 7th February 2014, About 8 years ago

@ Mark A

Yup looks that way, frightening isn't it? I even agree with Jeremy, find somewhere else Maggie! I can imagine living with this agent will be a nightmare.

I agree with Romain too, glass or frame is the Landlords responsibility if damage is not the tenant's fault.

Good final point too on liablity for permissive waste

1 2 3 4

Leave Comments

Please Log-In OR Become a member to reply to comments or subscribe to new comment notifications.

Forgotten your password?

BECOME A MEMBER