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 Michael Barnes

22:37 PM, 7th February 2014, About 8 years ago

Reply to the comment left by "DC " at "07/02/2014 - 17:20":

Hmm!
One lives and learns.

Great link; a good read.

Thanks.

by Michael Barnes

23:17 PM, 7th February 2014, About 8 years ago

Reply to the comment left by "Industry Observer " at "07/02/2014 - 15:36":

Having read DCs link, I stand corrected (and that is the joy of this web site).

The Noise term certainly falls foul of the Plain English rule. I guess I was considering the intent rather than the expression.
However, the DC link does say that if it is a covenant in the landlord's lease or deeds, then it would not be deemed unfair.

Glass: yes, all external glass is landlord's responsibility.

Repairs: yes, whilst the sentiments are reasonable the wording is not.

by Michael Barnes

23:21 PM, 7th February 2014, About 8 years ago

Reply to the comment left by "Mark Alexander" at "07/02/2014 - 15:36":

OK. You win 🙂

I've been reading too many leasehold and freehold agreements, which make the term seem reasonable.

by Gary Nock

23:47 PM, 7th February 2014, About 8 years ago

The clauses about noise etc have a caveat...so as not to disturb etc. I agree its a bit early (9pm to 9am) but most apartment leases have this in restrictive covenants. So if the property is an apartment then the agent may have lifted it from the lease or tried to and made a pigs ear of it. Like they seem to have done with the others. In any case breaches of the tenancy agreement and leases on noise are notoriously difficult to enforce and usually involve environmental health.

by Jeremy Smith

0:42 AM, 8th February 2014, About 8 years ago

'DC' thank you for posting that link, very interesting to read....

...quite an eye-opener...I've only got to page 37 so far (out of 127 !!)
But I do read everything very carefully!

So, when one of the big high street letting agents take a holding deposit of £200 per person before they reference/credit check a tenant, the agent is only allowed to retain a "reasonable amount" for their costs if the tenant fails the check, not all of it !!
- They told me the tenant doesn't get a refund, and so "only serious tenants will apply" !
- So that's an unfair term - Interesting !
Ref: Para 3.41/3.42

by Jeremy Smith

1:03 AM, 8th February 2014, About 8 years ago

Just to pull out some points from the document to which 'DC' has posted the link:
These paragraphs are pertinent to Maggie's situation, IMO:

Group 9: Binding consumers to hidden terms28 - paragraph 1(i) of Schedule 2

3.79 Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of:
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract.

3.80 We consider terms that bind tenants to unseen obligations unfair. It is a basic requirement of contractual fairness that consumers should always have an opportunity to read and understand terms before becoming bound by them (see Chapter 5, Group 19).

Pre-contract deposits
3.85 If the landlord or agents take a non-refundable pre-contract deposit, they may in effect bind the prospective tenant to accept terms 'sight unseen'. We are likely to consider a non-refundable deposit to be unfair in any case (see Group 4), and it is particularly open to challenge where tenants become bound before they have the chance to become acquainted with the terms of the tenancy agreement.

These Paras, coupled with Paras 3.41 and 3.42, referred to above, give Maggie a good basis to claim back most of her £500 fees (£150 each credit check+£200 property holding fee), less reasonable expenses, back from the agent, if she wishes to do so.

All posted is IMO only - I am not a financial advisor - any person should take their own legal advice.

by Mark Alexander

7:40 AM, 8th February 2014, About 8 years ago

Reply to the comment left by "Jeremy Smith" at "08/02/2014 - 01:03":

Hi Jeremy

I totally agree, hence my reason for first comment and subsequently following it up with this link.

UTCCR also applies to all of the residential mortgage borrowers affected by the BoI scandal, hence we are supremely confident of a win on that case if we can raise enough money to fight it.

Sadly, whilst the OFT vs Foxtons case acknowledged that a landlord can also benefit from the protection of UTCCR it did not establish when a landlord ceases to be a consumer. That's probably why West Brom have created their arbitrary ruling for increasing tracker rate margins for people with 3 or more properties. Nevertheless, the implementation was a complete dogs dinner as the UTCCR rules would be applied at the commencement of the contract and not in September 2013 which is the date that West Brom arbitrarily decided to choose.
.

by Maggie Stevenson

12:44 PM, 9th February 2014, About 8 years ago

Reply to the comment left by "Jeremy Smith" at "07/02/2014 - 20:03":

Thanks Jeremy that's a really interesting point. I would love to meet the landlord, as I'm sure he'she isn't aware of what the letting agency agreements look like, but perhaps I'm wrong. I wasn't sure if the letting agency would look kindly to that or not, but it's worth asking I suppose.

by Maggie Stevenson

12:56 PM, 9th February 2014, About 8 years ago

Thank you so much to everyone for the comments. This is really helpful and I am hugely grateful. I am now armed with some decent, legal documents and a much better understanding. I am fully supportive of the tenancy agreement being fair. I don't intend to cause any disturbance or damage to the property. I am just wary of signing a legal document which could end up costing me a lot of money and stress.

I plan to ask the letting agency to remove these points and replace them with something deemed to be a "fair" representation of the intention. I'm not sure what the response will be. I'll keep you posted.

I do want the apartment, though I am wary of letting agencies - I've been looking for somewhere to live for months now, the last place I found in December, but it was advertised by 2 letting agencies, and one had let it without informing the other agency, so even though I thought we had got it, we hadn't. Unfortunately there's almost nothing being advertised in this area with private landlords.

Many thanks!

by Industry Observer

17:11 PM, 9th February 2014, About 8 years ago

Two points

First if as Mark says the terms only become binding when the contract is signed then the references quoted by Jeremy may not stack up. If Maggie hadn't seen the contract before commencement day that would be very different. What has happened here is she has paid fees then not liked the clauses in the contract.

Second no way on this planet Maggie is the agent going to let you talk to the Landlord and probably no way the Landlord would be prepared to meet you anyway.

Sad but true


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