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

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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 Mandy Thomson

14:40 PM, 7th February 2014, About 8 years ago

Even if the property was a just room in a houseshare, much of this would be somewhat over the top!

by Michael Barnes

14:55 PM, 7th February 2014, About 8 years ago

You can always ask for terms to be changed, but there is no obligation on the agent/landlord to do so.

Noise:
This sounds like a clause taken from the leasehold for the flat and as such would not be negotiable: the landlord needs to pass it on to the tenants.
However, the clause is about making noise that is audible outside the flat AND is an annoyance to neighbours.
In effect it is saying "be a good neighbour and don't annoy other residents".
I have a similar clause in my tenancy agreements for flats and all it neans is "don't make too much noise, espercially when neighbours or their children want to sleep".

I would say this is reasonable.

Windows:
Cleaning windows is a reasonable request, certainly for the inside. Not so sure about the outside, but it might imply an obligation to have a window cleaner round regularly for windows above ground floor.
For my second floor flats I have a similar clause but only for the insides.
Ask the agent what it means and what you need to do to comply.

Replacing cracked glass is commonly considered to be a minor repair that is the tenants responsibility, and puts a responsibility on the tenant not to behave in a way that might cause damage to the glass. The tenant could cause breakage without realising it, and that should not be a burden on the Landlord.

Sounds like a reasonable clause to me.

Note that damage to the frames is Landlord responsibility, so if the frames rot and that is the cause of breakage, then provided that the landlord has been informed of the state of the frames it is the landlords responsibility.

Repairs:
Hmmm! An interesting one.

First with my pedant's hat on, this uses the word "affect " when they mean "effect" so it could well be that you can attempt repairs yourself without fallin foul of this (but not pay others to do so).

I would ask them to amend the clause to allow notification by email and not just on paper (which it implies).

It is reasonable for a landlord to protect himself against poorly carried out work or excessive cost for making a repair. It is also reasonable for a landlord to consider an issue not worth addressing at all (e.g a tile on the kitchen wall has cracked).
However, if you are concerned about no repairs for weeks, then discuss this with the agent/landlord and get an agreed timescale for giving plan of action and effecting resolution.
This should be done by categories of defect (how they impact your use of the property) and not on specific defects. e.g.:
1. Danger to life or health (e.gas leak; boiler broken)
2. severe effect on use of property (eg shower failure; frequent electrical trips)
3. minor effect on use (e.g. letterbox broken)
4. other (eg cracked tiles)

Aerials:
Again, sounds like a clause in the leasehold that needs to be placed on the tenant.
I have a similar clause for my flats.

Anything that is already there is not your responsibility; just ensure it is on the inventory.

In summary, the clauses do not look that bad. It is just that they have been worded in lawer-speak and not in plain English that makes them look draconian.
As long as you obey the rules of a good tenant:
a. Pay the rent
b. Look after and don't damage the property
c. Don't annoy the neighbours
d. Don't abuse the landlord or his agent
then you should be OK. After all, that is waht all these complicated clauses are trying to say.

by Industry Observer

15:11 PM, 7th February 2014, About 8 years ago

With all due respect Michael it is because you are not a lawyer that the clauses look OK to you.

I can assure you the lawyers at the OFT would have very different views. The one on noise is simply absurd

by Michael Barnes

15:21 PM, 7th February 2014, About 8 years ago

Reply to the comment left by "Industry Observer " at "07/02/2014 - 15:11":

Are you saying it is absurd to have a clause that says (in effect) "don't mak noise that can be heard outside the flat and is a nuisance to other residents"?

That is waht the clause is saying; it just lists lots of specific sourcers of such noise.

Although I agree that the "in particular" might be a bit clumsy, but it is just reminding the tenant that whilst they might be night-owls, others are not.

And if it is unenforceable, then what is the problem for the tenant?

by Industry Observer

15:36 PM, 7th February 2014, About 8 years ago

@ Michael

No of course I am not, what I am saying is that you do so by having a clause that is enforceable, which means it has to be fair etc etc.

Do you in all seriousness think that 9pm as a watershed is a reasonable time? I can assure you as I said from personal sword crossing with the OFT many years ago that it is not. Neither, for example, is saying the heating must be at a minimum of 15C between October and March - the OFT will only allow November to February!!

I agree it is all in the wording, of course it is. Just that most of the words in the clauses quoted are inappropriate.

And yes if the clause is unenforceable then the tenant has nothing to worry about - except a load of grief and hassle from Landlord and agent who think they are enforceable because the tenant signed the agreement. So the mess has to be cleared up after the event.

by Mark Alexander

15:36 PM, 7th February 2014, About 8 years ago

Reply to the comment left by "Michael Barnes " at "07/02/2014 - 15:21":

Hi Michael

I agree with Industry Observer that the wording of the clause is "absurd". I don't have the time or patience to explain everything that is wrong with it as there is so much despite it being relatively few words.

The clause you use may be fine but I would need you to post it here before I make further comment on that.

The problem with absurd clauses is that anybody with any sense will realise that if a landlord or agent includes clauses which are legally unenforceable they are complete amateurs at best and should be avoided at all costs.
.

by Industry Observer

15:41 PM, 7th February 2014, About 8 years ago

Extremely well said Mark that is the point and why Maggie should be very circumspect before committing herself

by Mark Alexander

15:52 PM, 7th February 2014, About 8 years ago

NOTE TO ALL LANDLORDS

If you want to get hold of suite of tenancy agreements and have a service whereby a proper Landlord and Tanant lawyer will draft bespoke and legally binding special conditions for you then please see the Legal section of this website via the navigation bar at the top of this page. The service we recommend is run by Tessa Shepperson who is an established professional in this field.
.

by DC

17:20 PM, 7th February 2014, About 8 years ago

Mark's link to The Unfair Terms in Consumer Contracts Regulations 1999 is worth reading in conjunction with the regs that Industry Observer is referring to by the OFT.

It's not a quick read but is definitely worth saving for future reference by anyone in the lettings industry.

http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft356.pdf

by Jeremy Smith

20:03 PM, 7th February 2014, About 8 years ago

Maggie,
I realise, when you say the market is buoyant, that you mean it's difficult to secure a property, so you are keen to keep one you have found, correct me if I am wrong.

After having another read of your post, it comes to mind that this landlord might have been on the receiving end of things like noisy washing machines being used late at night, like them jumping up and down on floorboards!, and late night parties, to suggest a couple.
Also, perhaps, on the receiving end of people getting his mate to do repairs and giving the landlord the (large) bill !
Perhaps sticking up aerials, or the like, in inappropriate places, like hanging them out of a front upstairs window.

He may have added these clauses, like I have over the years, to protect himself against these 'rogue' tenants, just in case he needs to use them, but alternatively he may also be very draconian and use them against you at every turn.
These paragraphs may not actually be HIS wording, they may be from the agent's TA.

As you say, you may be powerless to get repairs done in a timely manner and at his expense, if he ignores you.

If I was ever in a position to be a tenant, I would want to meet the landlord, even if it was going through an agent, but I realise this may not always be possible, but if he is local, he may be impressed that you ask.
Alternatively, it may be just down to the agent to sort everything out for him.
- If this is the case, you should try to find other people who are their tenants, there may be some in the same block (assuming this is a flat you are after), and ask them what the agent is like.
It is only after you are committed to them will you find out what they are really like, a bit like a boyfriend/girlfriend!

A bit of footwork and research is the key here, I think.

Good Luck, You might need it .


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