Ensure Tenancy Agreements Are Not a Source of Disagreement

Renting any home means entering into a legal agreement - a tenancy agreement setting out the rights, duties and responsibilities of both tenant and landlord.

Nowadays, (since introduction of the Housing Act 1988) most tenancy agreements are what are known as assured shorthold tenancy agreements (ASTs for short). These 'assure' the landlord that he or she can, if desired or necessary, regain the property at the end of the agreed rental period. They also assure the tenant or tenants that unless there is a serious breach of the tenancy agreement, he, she or they, can remain in residence at the very least for six months.

For this reason assured shorthold tenancy agreements are most commonly for six month periods only. Tenants can then be asked to leave at the expiry of the six months.

Alternatively, when the fixed term expires, the landlord may grant the tenants a further fixed term tenancy agreement, or simply allow them to stay on under the same terms. In such circumstances there is no need for a new tenancy agreement; the tenancy simply becomes a 'periodic tenancy'. Tenants can quit periodic tenancies by giving the landlord one month's notice, and may be required to leave on receipt of two months' written notice.

Tenancy agreements provide landlords and tenants with both the express rights and obligations spelled out in the tenancy agreement (always provided these are not at odds with the Housing Acts, with common law rights, or could be deemed 'unfair'. So, for example, a landlord may not require tenants to give longer periods of notice than is laid down in law, or claim the right to give shorter notice than required).

Irrespective of what the tenancy agreement says, tenants are entitled to the 'quiet enjoyment' of their home and landlords may not demand access without notice or enter the premises when the tenants are not present. Landlords have a duty of care towards their tenants, and tenants have a duty of care towards the property they are renting.

Tenants are also entitled to feel safe in their rented home and to be assured of this by being given a copy of a current gas safety certificate, and (if the property is furnished) knowing that all the furniture provided has appropriate fire safety labelling.

This does not mean that there is one standard form of tenancy agreement, and landlords and tenants have scope to agree a considerable number of the terms included. Perhaps the most important are the rent to be paid, when it is payable, whether in advance or in arrears, whether a deposit is paid, and whether furnishings are provided or not.

Unless stated otherwise, private sector tenancy agreements entered into since February 1997 are automatically shorthold assured tenancy agreements.

But there are exceptions - holiday lets, where no rent or a very low rent, or a rent in excess of 25,000 GBP is charged, where the tenant is a company, or where the accommodation is shared with a resident landlord. For these exceptions, different types of agreement are needed - 'common law' tenancy agreements which stand on their own merits outside the restrictions and protections of the Housing Acts.

In England and Wales, unless the tenancy agreement is to be for a fixed period in excess of three years, the tenancy agreement could be verbal (even so, certain information - about deposits, gas safety and energy performance - must be provided by the landlord in writing). However, a written tenancy agreement is strongly advisable in all cases since verbal agreements are notoriously difficult to enforce.

Tenancy agreements may be between the landlord and one tenant or a number of tenants - for example a couple living together as partners. From the landlord's point of view, two or more signatories to the AST are better than one since each will be 'jointly and severally' liable for the full rent - meaning that if one does not or cannot pay, the other tenant is responsible in law for the entire amount.

Houses can also be divided into multiple tenancies where each tenant has exclusive use of a particular part of the property (say a bedroom) specified in the tenancy agreement, with access to and use of common areas. It makes sense to have multiple rather than joint tenancies where the tenants are not related and may intend to live in the property for different periods.

Tenancy agreements are important documents, enforceable in law, and both landlords and tenants should take great care before signing such agreements. They must be satisfied that the agreement contains only terms with which they are able and content to comply.

Residentiallandlord.co.uk provides a complete online resource for all UK buy to let investors. As well as comprehensive and up to date information there is also a document download centre which includes our much praised downloadable tenancy agreement.

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The Tenancy Agreement And Responsibility For Repair And Maintenance

Responsibility within a tenancy agreement

One of the major issues relating to the renting and letting of property is that of maintenance and repair regarding the tenancy agreement. Who's responsible if the roof starts leaking,the central heating system breaks down? Even if the landlord and tenant have a comprehensive tenancy agreement that covers these matters in full, various Acts of Parliament often overrule the tenancy agreement. The law is not contained in any one single statute: it is a mixture of common law (judge-made law) and various statutory provisions designed to deal with diverse matters including tenancy agreements.

Primacy of terms in a tenancy agreement

In common law landlord / tenant liability for repairs is governed by the tenancy agreement. The terms of that contract ( tenancy agreement) may be set out expressly (express terms) or may be implied by law (implied terms). Some of these implied terms are implied by common law, others by Acts of Parliament known as statutory implied terms. The common law implied terms can be overridden by express terms of the tenancy agreement but the statutory implied terms cannot generally be ousted by the tenancy agreement, which makes the statutory implied terms extremely important to the tenancy agreement. It is therefore important for a tenancy agreement to look at:

* The express terms of the tenancy agreement

* The common law implied terms of the tenancy agreement (but bearing in mind that these can be excluded if the tenancy agreement says otherwise)

* The statutory implied terms within the tenancy agreement (bearing in mind that these cannot normally be excluded form a tenancy agreement and will therefore operate despite the terms of the tenancy agreement).

Breach of these express or implied terms within the tenancy agreement is a breach of contract (tenancy agreement) and can be enforced by the parties to the contract, ( tenancy agreement ) i.e. the landlord or the tenant as the case may be.

The tenancy agreement & statutory implied terms

The tenancy agreement may set out clauses which stipulate who is liable for what repair. If the landlord has undertaken within the tenancy agreement to do all the repairs the tenant can enforce these obligations as set by the tenancy agreement. The landlords' liability will depend upon the precise wording of the relevant clauses within the tenancy agreement.

'repair' & 'improvement'

It is important to distinguish 'repair' from 'improvement' within the tenancy agreement. The word 'repair' is confined to the renewal or replacement of subsidiary parts of the building; improvement is adding things to the property that do not already exist. The law does not impose an obligation on the landlord to effect improvements unless he has expressly agreed to do so in the tenancy agreement. Therefore repairing a leaking gutter would be classed as a repair. If the tenant wanted a conservatory that would be classed as an improvement and to my knowledge not many landlords would sanction this work.

If the terms of the tenancy agreement place the repairing obligation on the tenants the question of whether or not this would be enforceable depends on the length of the tenancy and the type of repairs. If a tenant has a periodic tenancy agreement or a fixed term tenancy agreement for less than 7 years, most of the major repairing obligations will be placed on the landlord by virtue of Section 11 of the Landlord and Tenant Act 1985.

Section 11 of the Landlord & Tenant Act 1985

Section 11 applies to leases or tenancy agreement granted on or after 24th October 1961 for less than seven years. The vast majority of Assured Shorthold Tenancy Agreement s are periodic or for terms of less than seven years and therefore Section 11 applies for these tenancy agreement s. The landlords implied obligations under Section 11 are:

* To keep in repair the structure and exterior of the dwelling (including drains, gutters and external pipes) to fulfill the tenancy agreement.

* To keep in repair and proper working order the installations in the dwelling for the supply of water, gas, electricity and sanitation (including basins, sinks, baths and sanitary conveniences) to fulfill the tenancy agreement.

* To keep in repair and proper working order the installations in the dwelling for room and water heating to fulfill the tenancy agreement.

Definition of structure within the tenancy agreement

'Structure and exterior' in the first point are not defined by the Act. However, 'structure' defined in a tenancy agreement clearly includes the main fabric of the dwelling such as the main walls, foundations and roof timbers (including window frames) as distinct from decorations and fittings, while 'exterior' defined in a tenancy agreement has been held by the courts to include paths or steps which forms an essential means of access to the dwelling but not paving in the backyard or a footpath at the rear of the house.

'Repair' within the terms of the tenancy agreement

Condensation is frequently a problem in rental properties and is often disputed within tenancy agreements. This has been exacerbated in recent years by the removal of wooden windows and their replacement with UPVC ones. This has been frequently done without due attention paid to ensuring sufficient passive ventilation. Most tenancy agreement s have clauses within them requiring the tenants to ensure adequate ventilation. However, this is only selectively adhered to. The landlord is then frequently presented with the problems resulting from poor ventilation such as mould or damage to the plasterwork. If the condensation has caused damage to the main fabric of the property, such as the plasterwork, the landlord could be made to repair the plasterwork, but this will not cure the condensation; it will simply repair the consequences of the condensation. If the condensation cannot be cured by 'repair' but can be eradicated only by 'improvements', the landlord is not liable under Section 11 to remedy the problem. Tenants may be able to pursue the matter under the Environmental Protection Act 1990.

The landlord's obligations within the tenancy agreement to repair and keep in proper working order the installations for the supply of water, gas, electricity, sanitation, room and water heating merely require him to maintain and repair the facilities that exist at the start of the tenancy agreement. If the dwelling does not have these facilities tat the start of a tenancy agreement , then there is no obligation on the part of the landlord to provide the necessary installations. Originally, the legislation was confined to installations which were actually within the four walls of the dwelling. However, if the tenancy agreement was granted on or after 15 January 1989 the landlord would be liable for the boiler irrespective of where it was located.

The landlord is liable for these matters under the tenancy agreement, even if the problem is a manufacturers' defect - for example, if the boiler was defective when it was supplied and fitted. He has to put the problem right even if it was not his fault: this is known as strict liability. The only exception would be where the defect is due to some fault on the part of the tenants, who must use the property in a 'tenant-like-manner' to fulfill their tenancy agreement. So if the problems arise because the tenants have not used the property in a tenant-like-manner, the landlord is not liable for repairs to the items in question under the tenancy agreement.

Standards of repair regards the tenancy agreement

Section 11 provides that in determining the standards of repair to the property the courts must have regard to the character and prospective lifespan of the property and the locality in which it is situated. Therefore, if the house is in a poor condition at the start of the tenancy agreement and in an area of very poor-quality housing the landlord will not have to carry out comprehensive repairs under Section 11, nor will he be obliged to carry out improvements. Patching repairs may satisfy the requirements of Section 11, depending upon the circumstances of the case.

The requirement of notice within a tenancy agreement

The landlord is not liable under Section 11 (or indeed under any of the express or implied obligations) unless the tenant has given him notice of the need for repair. So, if a tenant is injured as a result of a defect, the landlord will not be liable under the tenancy agreement for his injuries if he had not been notified of the need to repair the defect.

Common law implied terms within a tenancy agreement

The tenancy agreement may stipulate that the tenant is liable for internal decorative repairs. Quite often, however, the tenancy agreement is silent on this matter. In which case, one must look to the implied terms arising either at common law or under statute.

Unfortunately, the common law is little assistance in the vast majority of cases: If the tenancy agreement is silent, the general rule is that there is no implication that the premises are fit for human habitation or that either party will be responsible for repairs. In other words, the common law is largely neutral. However, there are some minor exceptions for the tenancy agreement which are explained below:

Furnished lettings and the tenancy agreement

In the case of a furnished letting tenancy agreement the landlord warrants (by implication) that the property is fit for habitation at the date when the tenancy agreement commences. Therefore, if a furnished house is uninhabitable because it is infested with insects the tenant can, at the start of the tenancy agreement, immediately repudiate the tenancy agreement, recover any deposit or rent that he has paid and sue the landlord for any damage or loss suffered. However, the tenant must act quickly since this implied term arises only at the commencement of the tenancy agreement. The landlord cannot be compelled to make the property habitable. The tenant remedy is simply to cancel the tenancy agreement and recover his losses. There is no continuing obligation on the part of the landlord to keep the furnished premises fit for habitation.

Tenant's duties to use the property in a tenant-like manner under the tenancy agreement
There is no implied term in any tenancy agreement, whether of a furnished or unfurnished property, that the tenant is to be responsible for repairs. However, the tenant must use the property in a 'tenant-like-manner' under the terms of a tenancy agreement. This means that he must take proper care of the property by doing the little jobs which can reasonably be expected of him from his tenancy agreement, such as unblocking drains, having chimneys swept, mending fuses and so on.

Common parts

In certain circumstances where a tenancy agreement is signed but is incomplete, the court may imply a term, at common law, that the landlord will take a reasonable care of common parts under the tenancy agreement - for example, staircases and other facilities which are shared between various tenants. If the premises consist of a large tower block containing lifts, staircases and other common parts and the tenancy agreement of the individual flats do not oblige either tenant or landlord to maintain the common parts, the court may hold that, since the tenancy agreement is incomplete and the premises cannot function without such common parts being maintained, the landlord must have taken responsibility by implication within the tenancy agreement to keep them in a reasonable condition.

Property Hawk is a site aimed directly at UK Landlords. The site incorporates free property management software that enables landlords to track all their financial data relating to their portfolio. It allows users to print tenancy agreements and other forms FREE FOREVER. The site generates a real time rent book for each property as well as calculating a landlords tax liabilty. The service is totally free to use at www.propertyhawk.co.uk

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Advice For Landlords Going To A Court Of Law Against A Tenant

Landlords should see going to court as a landlord's last resort. Unfortunately though, a court appearance is a fact of life for many landlords who are looking at regaining possession of their buy-to-let investment property, or are simply trying to retrieve rent & other monies owed to them by their tenant.

It is almost certain that any case that does go to court involving a landlord will end up in one of the 218 county courts in the country which deal with all but the most complicated civil law proceedings. Each court has Bailiffs who enforce court orders and seek to collect money if a judgment has not been paid.

So as a landlord you have filed court proceedings and the day is fast approaching when you will have to appear. What does a landlord need to do?

Justice

Firstly, a landlord should dispel any romantic notion that a landlord's court appearance is a mechanism to bring about justice after months of suffering at the hands of a bad tenant. One landlord neatly summarised the legal system governing the renting of property:

"it's got sod all to do with who's right and who's wrong, just who's filled in the proper bits of paper and knows their bundle of papers really thoroughly."

This means that even when you as a landlord know that you have done the right thing, this will count for nothing in the eyes of the law. Landlords should realise that going to court is case of proving a set of events against a list of very specific criteria. It is nothing to do with justifying that you the landlord are a good person and that your tenants are bad.

A landlords preparation for a court appearance

Careful preparation is definitely the key to any landlord's court appearance, particularly if the landlord is representing themselves. A landlord really needs to know what the Civil Procedure Rules (CPR say about the area of law they are taking action over. For example, the repossession of a landlord's buy-to-let property following a period of non-payment of rent. Civil Procedure Rules (CPR for those landlords that haven't come across them before are the procedural code that sets out how the court deals with cases in a just manner. Landlords before going to court should be aware of it and in particular the first few parts of the Civil Procedure Rules (CPR that deal with how court business is run in respect of paperwork, dates of service, etc.

It's all about the evidence a landlord can present

As I mentioned previously the secret for any landlord who wants to obtain justice is providing sufficient evidence. Before going to court a landlord will have to submit a pile of documentary evidence. This folder of documentary evidence is known in legal parlance as a "bundle" and it should contain all the evidence that a landlord refers to in their statement. This might be letters that have been exchanged between the landlord and tenant, rent statements, the tenancy agreement, etc. A landlord should prepare their table of contents carefully, giving the date, a name for the entry (e.g. e-mail from defendant to landlord) and a one-line summary of the important point in the document. (For example a defendant states that they have no money available to pay rent). It is important that the landlord numbers the pages in the bundle and that they know what is where in case the judge decides to ask a question about it. A landlord should put post-it notes on the edges of their own copy so that they can find things quickly and simply. A landlord should present the court's bundle in a ring-binder folder so the judge can easily get to the pages that the landlord refers to (this is a requirement of the Civil Procedure Rules (CPR anyway.)

A landlord should establish a clear timeline of everything that has happened to assist the judge in their determination. The landlord should also endeavour to give precise dates and amounts of money.

Finally, in preparing their statement, where a landlord makes reference to letters, e-mails etc, a landlord should make a note in their statement of the exact page number where this bit of evidence occurs in the landlord's bundle. This will help the judge when referencing the evidence and is also a requirement in the Civil Procedure Rules.

Most importantly a LANDLORD SHOULD BE WELL PREPARED. More importantly, they should be better prepared than their opponent, THE TENANT.

Tips for landlords on the court appearance

1. Firstly, a landlord should try and stay calm. A landlord should present their case in a dispassionate and calm manner. Getting worked up or annoyed will not help a landlord's case but getting across the facts and evidence will.

2. Court appearances are often brief. Landlords shouldn't expect an epic appearance. Where the defendant (the tenant) fails to show which is quite common and the evidence provided to the court is clear cut, the whole thing could be over in 5 minutes.

3. It is always useful for the landlord to have the basic facts on a single piece of paper as an 'aide memoir' and for easy reference listing the page or paragraph reference in the landlord's bundle of evidence (the landlord should bring the full details as well just in case)

If for example, the landlord is seeking possession under section 8 grounds the landlord might have the following information to hand:

* Tenancy start date

* Date the Section 8 Notice was served and how (proof of postage if the landlord has it)

* Arrears figure worked out to the set date. I normally do a large print spreadsheet for the judge to see.

4. A landlord should keep their answers to any questions short (yes / no). A landlord should be clear and concise. Landlords will probably find that the tenant will waffle on annoying the judge and digging a deeper and deeper hole for them selves. Remember a landlord can never prove a negative. For instance, that a tenant has not paid rent. Instead, a landlord should ensure that they lodge whatever evidence they hold and then claim that a tenant has not paid the rent; they should let the tenant prove that they have.

Remember all the evidence that a landlord has produced in court should have been submitted beforehand within a landlord's witness statement. The judge and the defendant will get a copy of this before the hearing.

5. Landlords should be aware that courts and even judges are not infallible. Therefore a landlord should always check any judgement carefully to ensure that the law has been correctly applied. If in doubt a landlord should always seek clarification from the court, or if a landlord is still unsatisfied they should seek professional advice. There have been cases for where the admin staff working at the court have not been clear on the judgement and issued an incorrect judgement or even that a judge has misinterpreted the law!

Chris Horne is an experienced landlord and property professional who now runs the website Property Hawk, a site aimed directly at UK Landlords. The site incorporates free property management software that enables landlords to track all their financial data relating to their portfolio. It allows users to print tenancy agreements and other forms FREE FOREVER. The site generates a real time rent book for each property as well as calculating a landlords tax liabilty. The service is totally free to use at propertyhawk.co.uk

Article Source: http://EzineArticles.com/?expert=Chris_Horne