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Unfair tenancy agreement. Property law advice please?


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Hello folks. I'm hoping for some advice on tenancy agreements please? Sorry for the long read, but I think I need to be as clear as I can.

 

My son is at Uni and he and 9 friends decided they wanted to share a house. Being young and foolish, they all got pressured into signing the tenancy agreement, as they were assured they would lose it if they didn't sign quickly. None of them clearly understood the agreement and all of them required guarantors.

 

I am currently guarantor for my son in his present, single accommodation, absolutely no problems there, but when I read the new tenancy agreement for the proposed new house, I raised numerous concerns and refused to sign as guarantor. Like many such, it is a joint and several tenancy agreement, but how any guarantor would ever sign one of those is a mystery to me. I am perfectly happy to take responsibility for my son's rent and actions, he's a great kid, but I would never agree to take joint responsibility for 9 total strangers. The guarantor agreement also stipulated a joint and several responsibility. I also noticed a number of clauses, in the main tenancy agreement, that caused me concern, and looking at the OFT site, there is a large section there, on this very subject, that seemed to bear that out, if I am understanding correctly?

 

EG. There is a clause that insists (Not advises) that each tenant must take out insurance to cover contents and accidental damage to the property.

There is a somewhat hidden clause, by way of a reference to a paragraph in a chapter of the 1988 Housing Act, that, once I'd managed to hunt it down, gives the landlord the right to give 2 months notice to the tenants to quit the property, but there is no such option for the tenants to do the same.

There are 2 conflicting access clauses, one that states the tenants are entitled to peace and quiet and to not be disturbed by the landlord, and further down states that the landlord/agents can demand access at any reasonable time of day.

There are others that I think are dubious too, but I'm rambling enough as it is, so those are the main ones. It appears to me as if the landlord has added amendments to a standard agreement to suit his needs.

 

None of the other guarantors agreed to sign either, and based on that, all of the tenants decided it was a bad move, and wish to pull out, but they have already signed the agreement and the landlord is trying to force them to fulfill that agreement. I realise that they were foolish to sign the agreement in the first place, and that they should have ensured that they, or someone they could trust, had thoroughly read and understood it first, but are they now stuffed and liable? My thought is that the agreement is unfair and could be challenged if it comes to that, but how many unfair clauses would it take for the contract to be deemed unfair?

 

We have spoken to the landlord to try and come to an amicable agreement, but he is now saying he cannot find anyone who will pay full rent (So much for the queue of potential tenants that forced a quick signature initially!!) and the signed tenants would have to make up the shortfall in the rent from the proposed replacement tenants in order to be released from the agreement.

 

I'm also wondering, if it did go to court, would the students be eligible for legal aid in a civil case, as none of them are employed, but living on their loans.

 

I hope someone can advise, and apologies again for the length of this question.

Thanks for reading, those of you who have struggled to the end of this.

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Is there not someone at the University that deals with these housing issues ?

 

My reading of your post is that the terms of the agreement are pretty standard and not a departure from the norm. Do you have examples of other tenancy agreements, so you can judge fairness or not ?

 

The tenants having Contents with accidental damage is standard. Under a Contents Insurance there is a section called tenants liability which covers liability for accidental damage caused by tenants to the house, which is not covered by other Insurance. Typically with students, they each arrange a separate Personal Possession policy for their own possessions. Students cannot normally buy one Contents policy for all of them.

 

If all parents had signed as guarantors, you would all share in any potential issues. But you are relying on others signing it and stumping up their share when a demand is made.

 

Suggest that they get advice from the Universities housing advice people or student union.

We could do with some help from you.

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Thanks for the response uncle B. (I still miss the Wombles)

My son is going to seek help from the university, but I suppose I'm trying to pre-empt any potential ugliness.

 

This is why I was hoping for some clarification. The Office of Fair Trading site states insisting on tenants to have insurance is unreasonable, quote below

 

"4.8 Unnecessary insurance requirements - we consider that whether

tenants wish to insure their own personal belongings is a matter for

them and that it is unreasonable for the landlord to make this a

contractual requirement. "

 

Also on the break clause, the OFT states

 

"3.65 Landlords sometimes choose to use a 'break' clause allowing them to bring

the agreement to an end on service of two months' notice. We would object

to such a term if it was not balanced by a similar provision allowing the

tenant to give notice in the same way. "

 

I have no idea if the opinions of the OFT bear any relevance at all, or are they just that...opinions? Do they have no bearing on anything in reality?

Thanks again

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Thanks for the response uncle B. (I still miss the Wombles)

My son is going to seek help from the university, but I suppose I'm trying to pre-empt any potential ugliness.

 

This is why I was hoping for some clarification. The Office of Fair Trading site states insisting on tenants to have insurance is unreasonable, quote below

 

"4.8 Unnecessary insurance requirements - we consider that whether

tenants wish to insure their own personal belongings is a matter for

them and that it is unreasonable for the landlord to make this a

contractual requirement. "

 

Also on the break clause, the OFT states

 

"3.65 Landlords sometimes choose to use a 'break' clause allowing them to bring

the agreement to an end on service of two months' notice. We would object

to such a term if it was not balanced by a similar provision allowing the

tenant to give notice in the same way. "

 

I have no idea if the opinions of the OFT bear any relevance at all, or are they just that...opinions? Do they have no bearing on anything in reality?

Thanks again

 

OFT does not exist in the same form, as it was, as the government changed it. But those issues are not law or requirements. They are comments on the issues.

 

The tenants don't have to arrange Insurance. The landlord is not going to ask to see 9 personal possessions policies to check that tenants liability is covered. But if they don't have Insurance they are still liable. For example a chip pan causes smoke damage after being left on. No fire claim, but a smoke damaged kitchen that needs redecoration. The tenants attempt some minor DIY which goes wrong.

 

The break clause does not point to any law being breached by this term. It is unlikely the landlord would get a tenancy agreement drawn up that was not in compliance with law as it would unenforceable.

 

Not an expert on tenancy law and others will comment. But i have read of very similar terms in tenancies and understand them to be pretty standard.

We could do with some help from you.

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Thanks again. Sounds like they may be up a particular creek without a paddle then. I think this will certainly be a life lesson for them all, if nothing else and I hope it won't get to the ugly stage anyway. It is a real mess now, as there are so many of them involved, trying to get an agreement between them all now is unlikely, and most of them are actively looking elsewhere, so I have no clue how this will end up. I hope it doesn't go too far, as I don't see how anyone can gain. They all have zero assets or employment, so not sure what the landlord could gain by pursuing it through the court. At least it all happened before they moved in, the agreement wasn't due to take effect until June for them to move in, so I assume he has existing tenants in place.

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The legal position is that contract terms in a 'standard form' tenancy agreement will not be enforceable if they are regarded as unfair. See http://www.legislation.gov.uk/uksi/1999/2083/regulation/5/made. The OFT no longer regulates this area, but its previous guidance has been adopted by the CMA board and therefore remains valid. The guidance itself is not legally binding but is very helpful if you are trying to decide whether a contract term is 'unfair' or not.

 

It sounds like some of the terms you have described are unfair. The guidance is very clear that unlimited access rights and a compulsory requirement to take out contents insurance are regarded as unfair.

 

The effect of 'unfair terms' in a contract is that those terms are regarded as unenforceable. However the rest of the contract remains in force (see http://www.legislation.gov.uk/uksi/1999/2083/regulation/8/made). So if the students signed on the dotted line, they will still be bound by the rest of the contract. You could try to say that the contract was not binding because the landlord exerted undue pressure and falsely claimed they would lose the property if they didn't sign quickly, but I don't think this would stand up legally.

 

It sounds to me like a sensible solution would be to ask the landlord to change the contract terms which are causing concern. When that has been done, all parties can sign the revised contract. Your negotiating leverage is that none of the guarantors have signed up at the moment. If that is not possible, then I guess the landlord will just need to find new tenants (there is not much point in him suing students).

 

If the landlord did want to begin a small claim, this would be a money claim. Legal aid would not be available for this type of case.

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Thank you steampowered, I will pass on the advice, that is very helpful.

I'm not sure the 'sensible solution' will become a reality though. I get the feeling from son that most of the others have already decided against it now, and unless the joint and several terms were somehow excluded from the guarantor agreement, I doubt the guarantors would sign, I certainly wouldn't. I will happily take responsibility for my son's, single share of the rent etc, but I refuse to be held liable for others potentially defaulting.

I'm hoping something sensible comes out of it.

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If this tenancy does not start until June, the landlord has plenty of opportunity to find other tenants. I would query whether this landlord has incurred much in the way of costs.

 

Perhaps all of the 9 can sign a letter just stating the contract terms e.g A,B,C are unfair, non of the potential guarantors will agree to unfair contract terms. This being the case we don't believe it is possible to proceed and will have to find alternative accommodation.

 

Something like that might just put a line under this matter and the landlord will find other tenants.

 

I would not invite the landlord to change the terms if they are already finding other accomodation. What if they come back with another agreement ? Unlikely but it would just drag it on.

We could do with some help from you.

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Ha...it may possibly have been beneficial had I mentioned the tenancy start date initially....Doh!!

 

That sounds like a logical step, thank you.

 

I suppose the point is that this tenancy agreement might never be accepted without guatantor singatures and without the guarantors the agreement never came into any force.

 

There is another new thread today by Dragnetpickle ( anything to do with you ?) about a student tenancy where one of six students did not pay and there was no guarantor. In that case a letting agency was involved.

We could do with some help from you.

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