If you have nicked a free tenancy agreement off the internet or repurposed one provided by a letting agent, then now’s the time to throw it in the bin.
Many landlords believe they can rewrite someone else’s assured shorthold tenancy agreement (AST) by adding and taking away the bits they do not want to apply to them.
Unfortunately, the law does not work like that.
Landlords cannot cherry-pick the bits they like and ignore the rest.
Just because a clause is entered into a tenancy agreement does not make the wording binding on the tenant or landlord.
Even if the term has sat unchallenged in the agreement for years, a tenant can argue the case in court and have the agreement overturned.
And going to court is costlier than shelling out a tenner or so for a legal agreement.
The courts will apply two tests to a tenancy agreement, which is basically a contract between two parties governing their relationship like any other contract.
First, statutory law takes precedent over a contract. So the Housing Act and the myriad other laws that govern the buy to let and houses in multiple occupation (HMO) trump any clauses in a tenancy agreement.
Next is the test of reasonableness. This is more on the side of the tenant and considers how consumer law applies to the document.
Much of this is governed by the Consumer Rights Act 2015, which revised the guidelines in the Unfair Terms in Consumer Contract Regulations 1999.
Other rules affecting landlords also needs considering – like the Deregulation Act, Immigration Acts and the fast-approaching Housing & Planning Act.
No doubt Brexit will also have to be factored in as British and European Union laws are redefined.
The best way to ensure an AST is up-to-date and legal is to buy one from a reputable supplier at the start of a tenancy.
A free download is available on the government web site – but this is a complicated cover-all agreement that runs to close to 50 pages and may need some tweaking by a lawyer. It may be suitable for a landlord with a single property but in our view it’s not ideal for a professional landlord.
The Guild of Residential Landlords uses a Tenancy Builder where various options are selected and a bespoke agreement for the particular situation is produced. The builder includes all the appropriate tenancy deposit prescribed information and handouts required to be given to the tenant by law (which the Government model agreement does not supply). Our agreements are continuously updated – usually about every quarter – and are free for unlimited agreements for Guild subscribers.