Can this clause of the tenancy agreement be enforced?

[pearlg]

Hello,

 

I am about to sign an assured shorthold tenancy agreement to move into a new property.

 

However, there is one clause within the contract which I am uneasy about. It reads:

 

"If the rent is in arrears at any time for seven days (whether or not it has been formally demanded) or any of the provisions of this agreement on the Tenant's part shall not be undertaken or should the Tenant become bankrupt or if the tenant's ceases to reside in the demised premises for a consecutive period of more than 28 days the Landlord may enter the premises and reclaim possession of all items detailed in the inventory and thereafter the tenancy shall cease and determine but without prejudice to any claim by the landlord against the tenant for any prior breach of this agreement.

 

I was just wondering if this clause is actually enforceable in the UK? Not that I'm planning on missing rent or breaking the agreement, but I don't particularly like the thought that the Landlord can just reclaim possession if he deems me to have broken any clause of the tenancy, so I wanted to see if this clause is actually legal?

 

Thanks in advance for your help

 

EDIT:

 

There are also a couple of other clauses which seem a bit excessive and I was wondering if they could be enforced:

 

One: "After receiving at least 24 hours notice, permit the Landlord, his duly authorised agents with or without workmen and others, at all reasonable times, to enter the premises to examine the condition and state of repair of the premises and also of the furniture and household effects after which the landlord may serve written notice on the Tenant giving details of any repairs necessary to the premises, and of any damage, destruction or loss of any of the furniture or household effects and to require the Tenant to carry out repairs and make good any such damage, destruction or loss and if the Tenant has not after ten days following service of the notice made such repairs in a proper manner to the destroyed or lost items, the cost of them shall be due from the Tenant to the Landlord and be immediately recoverable by action PROVIDED that nothing contained in this clause shall impose any liability on the Tenant which is put upon the Landlord by Section 11 of the Landlord and Tenant Act 1985 and as amended in Section 11.6 of the housing Act 1986.

 

Also:

 

at any time or times during the last two months of the tenancy permit the Landlord and his duly authorised agents to enter the premises and to fix and keep a notice for re-letting or selling the premises without interference and during the last two months of the tenancy to allow by appointment at reasonable times of the day, the Landlord and his agents and all persons with the landlord's or his agent's written authority to view the premises.

 

and

 

agree that the Landlord is responsible for the making of the inventory including the charge of, content, condition of the property and payment thereof at the commencement of the tenancy and that the Tenant is responsible for the payment of the fee for inventory checkout and accepts the findings of the landlord or a clerk appointed by the landlord or his agents and any subsequent assessment shall be final and binding on the Tenant.

 

and finally,

 

Subject to 72 hours notice the landlord or agent instructed can do quarterly inspections

 

Sorry for the long post, but I really wanted clarification on the above before I sign the agreement!!

 

Thanks

Edited July 21, 2011 by pearlg

[MrShed]

The simple answer is no. He would have to serve a formal notice (under Section 8, if for breach of tenancy) and get a court order to evict.

 

If you dont reside there for 28 days however, the landlord would have good cause to believe you had abandoned the property, so this one is slightly less clear cut.

[pearlg]

Thank you for the fast response. I didn't think it could but I wanted to make sure.

 

There are also a couple of other clauses which seem a bit excessive and I was wondering if they could be enforced:

 

One: "After receiving at least 24 hours notice, permit the Landlord, his duly authorised agents with or without workmen and others, at all reasonable times, to enter the premises to examine the condition and state of repair of the premises and also of the furniture and household effects after which the landlord may serve written notice on the Tenant giving details of any repairs necessary to the premises, and of any damage, destruction or loss of any of the furniture or household effects and to require the Tenant to carry out repairs and make good any such damage, destruction or loss and if the Tenant has not after ten days following service of the notice made such repairs in a proper manner to the destroyed or lost items, the cost of them shall be due from the Tenant to the Landlord and be immediately recoverable by action PROVIDED that nothing contained in this clause shall impose any liability on the Tenant which is put upon the Landlord by Section 11 of the Landlord and Tenant Act 1985 and as amended in Section 11.6 of the housing Act 1986.

 

Also:

 

at any time or times during the last two months of the tenancy permit the Landlord and his duly authorised agents to enter the premises and to fix and keep a notice for re-letting or selling the premises without interference and during the last two months of the tenancy to allow by appointment at reasonable times of the day, the Landlord and his agents and all persons with the landlord's or his agent's written authority to view the premises.

 

and

 

agree that the Landlord is responsible for the making of the inventory including the charge of, content, condition of the property and payment thereof at the commencement of the tenancy and that the Tenant is responsible for the payment of the fee for inventory checkout and accepts the findings of the landlord or a clerk appointed by the landlord or his agents and any subsequent assessment shall be final and binding on the Tenant.

 

and finally,

 

Subject to 72 hours notice the landlord or agent instructed can do quarterly inspections

 

Sorry for the long post, but I really wanted clarification on the above before I sign the agreement!!

 

Thanks

[Steve__M]

The writer of this contract is up his own behind really.

 

It's not unreasonable for a landlord to require that his possessions are looked after and kept in good condition throughout the tenancy, but then most tenants would want to do this too. I suspect the terms are more about the landlord asserting a level of standard that he wants to maintain. Practically enforcing them through court action would be hard (unless tenant is trashing the place).

 

I always find terms about inspecting the property extremely patronising. A landlord should check a property for the sake of the condition of the property (water leaks, condensation, gutters, roofs etc) not just to make sure tenant has Dysoned the carpets properly.

 

In the last clause (about the checkout) it includes "and any subsequent assessment" which sounds like it does not rule out ongoing negotiations and or arbitration.

[Aequitas]

"If the rent is in arrears at any time for seven days...etc.

 

Do not worry about this. It is a standard provision which the landlord needs as otherwise he cannot bring the fixed term to an end if the tenant is in breach. However, the Protection from Eviction Act 1977 provides that whilst a tenant is in occupation a landlord may not exercise a right of re-entry or forfeiture without a court order.

 

After receiving at least 24 hours notice...etc

 

and

 

at any time or times during the last two months of the tenancy...etc

 

and

 

Subject to 72 hours notice the landlord or agent instructed can do quarterly inspections

 

Again fairly standard, but see this thread.

 

agree that the Landlord is responsible for the making of the inventory including the charge of, content, condition of the property and payment thereof at the commencement of the tenancy and that the Tenant is responsible for the payment of the fee for inventory checkout and accepts the findings of the landlord or a clerk appointed by the landlord or his agents and any subsequent assessment shall be final and binding on the Tenant.

 

The requirement that the tenant accepts the landlord's findings is almost certainly an unfair term under the Unfair Terms in Consumer Contracts Regulations.

 

 

 

Sorry for the long post, but I really wanted clarification on the above before I sign the agreement!!

 

Thanks

[pearlg]

Thank you very much for the helpful responses. I have another question about a clause that concerns me:

 

When I was viewing the property initially, it was also listed as For Sale. However, the estate agent assured me that if we rented the property for a tenancy of 12 months, the landlord would be unable to sell it until the end of the tenancy.

 

However, within the agreement that the agent gave me to sign, it states the following:

 

The landlord gives notice to the tenant that possession of the Demised Premises may be recovered under Ground 2 Part 1 Schedule 2 of the Housing Act 1988 namely that the property may be subject to a mortgage granted before or after the tenancy and the mortgage [sic?] may become entitled to exercise a power of sale and will require possession of the property for the purpose of disposing of it with vacant possession in the exercise of that power.

 

Does this mean that if the landlord decides that they want to sell the property midway through our tenancy, they have the right to evict us and gain possession of the property?

[Aequitas]

The landlord can of course sell while the tenancy continues. If there is a sale the tenancy continues and your position remains the same. Just watch out they do not slip in a break clause giving the landlord the right to terminate early.

 

The clause referred to shows that whoever drafted the agreement does not understand how ground 2 works. You cannot give a ground 2 notice. Ground 2 can only apply if a ground 1 notice is given and you can only give that if you have lived in the property. In any event neither ground 1 nor ground 2 can be used to bring a fixed term to an end. Putting them in an agreement where the tenancy will be an AST is a waste of time.

 

Quite separate from this is that if the landlord has a mortgage the lender's consent may be required. If consent is required and not obtained the tenancy does not bind the lender. Assuming it is registered, you can check if there is a mortgage by downloading the landlord's title here. If a mortgage is revealed say you want to see the lender's consent before signing up.

Edited July 21, 2011 by Aequitas

[Ed999]

I am about to sign an assured shorthold tenancy agreement to move into a new property.

 

I note that you do not say whether the tenancy is a periodic tenancy or is a fixed term tenancy.

 

 

"If the rent is in arrears at any time for seven days (whether or not it has been formally demanded) or any of the provisions of this agreement on the Tenant's part shall not be undertaken or should the Tenant become bankrupt or if the tenant's ceases to reside in the demised premises for a consecutive period of more than 28 days the Landlord may enter the premises and reclaim possession of all items detailed in the inventory and thereafter the tenancy shall cease and determine but without prejudice to any claim by the landlord against the tenant for any prior breach of this agreement.

 

 

I agree with Mr Shed. This clause merely gives the landlord the right to give a notice under section 8 of the Housing Act 1988.

 

A notice given by the landlord under section 8 of the Housing Act 1988 is explained in more detail in the FAQ -

 

• Shorthold Tenancy - possession, eviction and notice

 

The various grounds on which the landlord can give a section 8 notice are set out in full in Schedule 2 of the 1988 Act -

 

• http://www.legislation.gov.uk/ukpga/1988/50/schedule/2

 

In brief, a tenancy can be ended by such a notice if there are (or have been) rent arrears or some other breach of the tenant's obligations. Those obligations are the duties set out in the written tenancy agreement, and the tenant's statutory duties set out in the 1988 Act.

 

 

"After receiving at least 24 hours notice, permit the Landlord, his duly authorised agents with or without workmen and others, at all reasonable times, to enter the premises to examine the condition and state of repair of the premises and also of the furniture and household effects after which the landlord may serve written notice on the Tenant giving details of any repairs necessary to the premises, and of any damage, destruction or loss of any of the furniture or household effects and to require the Tenant to carry out repairs and make good any such damage, destruction or loss and if the Tenant has not after ten days following service of the notice made such repairs in a proper manner to the destroyed or lost items, the cost of them shall be due from the Tenant to the Landlord and be immediately recoverable by action PROVIDED that nothing contained in this clause shall impose any liability on the Tenant which is put upon the Landlord by Section 11 of the Landlord and Tenant Act 1985 and as amended in Section 11.6 of the housing Act 1986.

 

 

This is a perfectly normal and acceptable clause, one that's always included in a shorthold tenancy agreement.

 

It merely sets out the tenant's implied duty to take proper care of the premises and their contents.

 

The tenant has a duty to treat the property in a 'tenant-like manner'. This is defined by the Court of Appeal in the leading case of Warren v Keen [1953] 2 All ER 1118, CA.

 

Basically, the tenant must take proper care of the premises, and must repair damage to the premises caused, wilfully or negligently, by him, his family, or his guests.

 

 

 

at any time or times during the last two months of the tenancy permit the Landlord and his duly authorised agents to enter the premises and to fix and keep a notice for re-letting or selling the premises without interference and during the last two months of the tenancy to allow by appointment at reasonable times of the day, the Landlord and his agents and all persons with the landlord's or his agent's written authority to view the premises.

 

 

This is a perfectly normal and acceptable clause

 

 

 

agree that the Landlord is responsible for the making of the inventory including the charge of, content, condition of the property and payment thereof at the commencement of the tenancy and that the Tenant is responsible for the payment of the fee for inventory checkout and accepts the findings of the landlord or a clerk appointed by the landlord or his agents and any subsequent assessment shall be final and binding on the Tenant.

 

 

This is a most unusual clause, which you should not agree to. It might prevent you from challenging the landlord's claim for the cost of repairs after the tenancy is over, in any resulting court case, if the landlord alleges disrepair.

 

 

 

Subject to 72 hours notice the landlord or agent instructed can do quarterly inspections

 

 

This is a perfectly normal and acceptable clause.

[Ed999]

The landlord gives notice to the tenant that possession of the Demised Premises may be recovered under Ground 2 Part 1 Schedule 2 of the Housing Act 1988 namely that the property may be subject to a mortgage granted before or after the tenancy and the mortgage [sic?] may become entitled to exercise a power of sale and will require possession of the property for the purpose of disposing of it with vacant possession in the exercise of that power.

 

Does this mean that if the landlord decides that they want to sell the property midway through our tenancy, they have the right to evict us and gain possession of the property?

 

 

No, it means that the landlord's mortgage lender can.

 

 

Regardless of whether the letting to you is authorised by the mortgage lender, you will normally have no right to remain in the property if the lender is granted a possession order by the court.

 

An authorised letting, signed by the landlord and approved in advance by the mortgage lender, is normally granted subject to an express provision in the tenancy agreement to the effect that the tenant agrees to move out on the lender's request. An unauthorised letting, i.e. one which the lender is not aware of, is simply not binding on the lender, provided the tenancy was granted AFTER the mortgage was.

 

The landlord is not in breach of contract to the tenant if the letting is authorised by the mortgage lender, and the tenancy agreement includes the express provision mentioned above.

 

Otherwise, the landlord might be in breach of contract; but if he's in such financial trouble that he's being repossessed, then realistically there seems little chance of recovering any compensation that the tenant might be awarded.

 

For example, if, before the current tenancy was granted, the mortgage lender obtained a court order for possession or appointed a Receiver under its Law of Property Act powers, then the landlord had no legal power to let the premises. In that case, any tenants who were let into occupation would be trespassers, and a court order could be granted to the mortgage lender to evict them as trespassers.

 

 

If the mortgage pre-dates the tenancy, you as tenant have no right to remain if the mortgage company asks the court to give it possession of the premises (unless the mortgage company consented, in writing, to the granting of the tenancy).

 

Under the new regulations [Mortgage Repossesion (Protection of Tenants) Act 2010], the mortgage company must give a tenant at least 2 months notice (i.e. exactly the same length of notice that a landlord has to give under a 'rolling' shorthold tenancy).

 

That notice does NOT end the tenancy. If the tenant does not leave, when the notice period expires the mortgage company must then apply to the court for permission to evict the tenant.

 

The court will typically suspend any eviction order for 28 days, starting from the date of the court hearing, if the tenant attends the hearing and asks for that. The purpose of this is to allow the tenant time to find alternative accommodation.

 

If the mortgage company takes court proceedings against only the landlord, i.e. a standard mortgage repossession as if the property was owner-occupied, the tenant is not affected. To evict the tenant, the mortgage company must actually sue the tenant: typically, such proceedings will describe the tenant(s) as "the occupier".