The Tenancy Agreement

The Tenancy Agreement

Many tenants have a written tenancy agreement, but a legal contract exists between a landlord and a tenant whether or not anything is written down. A verbal agreement may simply be based on the conversation the landlord and tenant had when they originally agreed on the terms of the letting.

A verbal contract may, however, be difficult to enforce, especially if there were no witnesses to the agreement.

What Documents and Information Must the Tenant Receive?

By law, the following documents or information must be given to a tenant:-

• if there is a weekly tenancy (not a fixed term or monthly tenure), the landlord must provide a rent book or similar document. The landlord commits a criminal offence if s/he fails to do so

• if the tenant does not know the name of the landlord, s/he can make a written request to the person who receives the rent for the full name and address of the landlord. The agent must supply the tenant with this information in writing within 21 days, after which s/he commits an offence

• the landlord must provide her/his address

• in England and Wales if the tenancy is an assured shorthold which was created on or after 28 February 1997, the landlord must provide basic written terms of the agreement within 28 days of the tenant requesting this in writing

Implied Terms of Tenancy Agreements

There are obligations a landlord and tenant have which may not be set down in the agreement but which are given by law and are implied into all tenancy agreements. These terms form part of the contract, even though they have not been specifically agreed between the landlord and tenant.

Some of the most common implied terms are:-

• the landlord must carry out basic repairs

• the landlord must keep the installations for the supply of water, gas, electricity, sanitation, space heating and heating water in good working order

• the tenant's right to live peacefully in the accommodation without nuisance from the landlord

• the tenant's obligation to take proper care of the accommodation.

Rights given by law will vary according to the type of tenancy.

Sham Tenancy Agreements

The rights laid down by law always override those which are stated in a written or oral agreement. An agreement which suggests that the tenant or the landlord has less rights than those given by common law or statute is a sham tenancy agreement.

What an agreement states and what the tenancy actually is may be different. For example, landlords may claim that an assured tenancy is in fact an assured shorthold tenancy (short assured tenancy in Scotland), or that the agreement is not a tenancy agreement but a 'licence to occupy'.

In England and Wales, but not in Scotland, a tenant may also have signed an agreement stating that the property was granted under a licence to occupy. This is not enough to make the agreement a licence.

Changing the Tenancy Agreement

A tenancy agreement can normally only be changed if both the tenant and the landlord agree.

If the tenant and the landlord both agree, the change should be recorded in writing, either by drawing up a new written document setting out the terms of the tenancy or by amending the existing written tenancy agreement.

An oral agreement can also be varied. Usually the variation will be oral too. In the case of a dispute, evidence of the variation can be provided if there were witnesses to the new agreement or simply by both parties acting on the variation, for example, by paying and accepting a new rent.

The right to stay in the accommodation

A tenant's right to stay in the accommodation will depend on the type of tenancy s/he has.

Protected and assured tenants

The landlord can only repossess the property if s/he can convince the court that there are reasons why the tenant should be evicted, for example, s/he has rent arrears, has damaged the property or has broken one of the terms of the agreement.

Assured shorthold tenants

Tenancy began before 28 February 1997:

An assured shorthold tenant has the right to stay in the accommodation for the duration of the initial fixed-term unless s/he breaches a term in the tenancy agreement or, for example, is in rent arrears, or has damaged the property.

If an assured shorthold tenant stays in the home after the initial fixed - term ends and the landlord does not intend to renew the agreement and wants possession, s/he will have to give the tenant at least two months notice to leave the property, and will have to go to court for possession of the property if the tenant does not leave. If the landlord takes no action the tenant will become a statutory periodic assured shorthold tenant and the landlord will not be able to regain possession of the property without going through this procedure.

Tenancies created on or after 28 February 1997:

The landlord cannot evict the tenant during the first six months of the tenancy, or during the initial fixed-term, whichever is the longer, unless s/he has grounds for doing so, as for tenancies created before 28 February 1997.

At the end of this period the landlord can automatically get a court order to evict the tenant, as for tenancies created before 28 February 1997.

Tenants with basic protection

If a tenant with basic protection does not move out when the landlord has given her/him notice to quit and the notice period has expired, the landlord has to go to court for a possession order. This will normally be granted. If the tenancy is for a specified fixed term (for example, it is agreed that it lasts for 6 months or a year), the landlord does not have to give the tenant notice to quit at the end of that term. The landlord still has, however, to apply for a possession order to evict the tenant. S/he can only apply once the fixed term has ended.

Ending a Tenancy Agreement

A tenant or landlord's right to end a tenancy agreement and the tenant's right to stay and be protected from eviction will depend on the type of tenancy.

Is the Tenancy Agreement 'Unfair'?

The tenancy agreement is a form of consumer contract and as such it must be in plain language which is clear and easy to understand. It must not contain any terms which could be 'unfair'. This means, for example, that the tenancy agreement must not put either the landlord or the tenant in a disadvantageous position, enable one party to change terms unilaterally without a valid reason or irrevocably bind the tenant to terms with which s/he has had no time to become familiar. An unfair term is not valid in law and cannot be enforced.

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