Tenancy Agreement - Essay Example

Harris Kamran Law UK Housing Laws 10 August 2007 Tenancy Agreement Introduction: Tenancy agreement is an arrangement between the tenant (the person who pays rent to occupy land or a building) and the owner (the person who holds that land or building as personal property) which could either be on paper or verbal. Under this agreement, both the tenant and the owner are assigned certain rights and obligations, as par the law, which are binding on both and are at least equal to their statuary rights. If less, that clause of the agreement cannot be implied. There are two parts to a tenancy agreement: the express terms/clauses and the implied terms/clauses. a) Express Terms: The express terms are those clauses which are exclusive to the pertinent agreement, either in the written form or in the verbal form. In the Great Britain, tenants, by law, usually do not have a right in this arrangement. Nevertheless, owners dealing with the public sector normally provide an agreement on paper. This should be mutually attested, and after that it becomes imperative that the owner gives his contact information and a copy of the arrangement to each tenant (in case there are multiple tenants). It is advisable that the written agreement includes the names and contact information of both the parties, the date, details of the payment and any time durations that may be set regarding the tenancy. All these factors fall under the express terms of the agreement. b) Implied Terms: The implied terms are all those clauses that are specified by law and are binding on both the parties regardless of the express terms. These include the duty of the tenant to care for the property and their right to live in peace without any disturbance from the owner, and the duty of the owner to supply basic amenities and perform repairs up to a level set by the law. 2) The three Essentials: There are three documents concerning the agreement that a tenant is entitled to, and by withholding which the owner would be committing a criminal offence. If the period of the tenancy is not fixed, but weekly, the tenant is entitled to receive a rent book by the owner. In case the name of the owner is unknown, any intermediate party between the tenant and the owner should provide the tenant with the full name and the contact information of the owner before 21 days, starting from the date of the agreement. For all tenancy agreements formulated on or after 28 February 1997, the tenant must get a written form of the express terms of the agreement within a period of 28 days after such a request, in written form, is made by the tenant. 3) Major types/divisions of Tenancies: Tenancies are divided into two basic divisions: public sector tenancies, and private sector tenancies: a) Public Sector Tenancy: A tenant is a public sector tenant if he is under the jurisdiction of the district and London borough councils, also known as the local authorities, a Housing Action Trust, a housing association or a housing co- operative. The tenants of the local authority and the Housing Action Trust, together with those tenants of the housing association and co-operative whose agreement started before 15 January 1989, are 'secure' tenants. The tenants of the housing association and co-operative whose agreement started on or after 15 January 1989 are 'assured' tenants. i) Payment: By right, both the secure and the assured tenants can occupy the property unless the owner can prove in a court that the tenant has violated any agreement terms. If a term has been violated, by law, the tenant can only be evicted if the owner has provided prior notice to the tenant and the county court has given the owner the permission for possession of his property. Not only will the tenants be able to exercise their implied rights, they will also obtain additional rights. In the case of a secure tenant, these rights include the rights to let, exchange, buy, renovate, or control the management of the property. In the case of an assured tenant, these rights include the rights to demand the agreed repairs from the owner, to renovate the property up to a certain limit and get reimbursed by the owner, and to pass the tenancy over to a successor in case of their demise. All tenants, in lieu of their tenancy agreements, whether secure or assured, have the right to safety concerning any gas appliances installed in the property, and it is the duty of the owner to have safety surveys conducted every year by a registered personnel of CORGI. The tenants are entitled to view the records of these surveys. ii) Rent: For secure tenants under a tenancy agreement with the local authorities, the rent is a set amount that cannot be changed by the tenant. For secure tenants under a tenancy agreement with a housing association or co- operative, the rent can only be increased after a period of two years. For an assured tenant, the rent is that agreed upon in the arrangement of the tenancy, and it can only be increased once in a year. To increase the rent, the owner has to abide by the guidelines given by the Housing Corporation. Under the tenancy agreement, all tenants, whether they are secure or assured, can make use of their housing benefits to pay their rent. iii) Introductory Tenancy: Under the tenancy agreement with some Housing Action Trusts and local authorities, the tenants are 'introductory' tenants for a period of one year starting from the date of their tenancy agreement. 'Introductory' tenants have relatively less rights as compared to the secure or assured tenants. For instance, whereas the introductory tenants maintain the rights to demand the agreed repairs from the owners, control the management of the property and pass the tenancy over to a successor in case of their demise, they do not have the rights to let, exchange, buy or renovate the property. If the owner has not filed any eviction cases against the tenant, the introductory tenancy would be changed to secure tenancy after the set period of 1 year. But all tenancy agreements formulated on or after 6 June 2005 can be furthered in their introductory status for a period of 6 months. b) Private Sector Tenancy: A tenant is a private sector tenant if he has rented a private property (a property which does not fall under the jurisdiction of any local authorities, Housing Action Trusts, housing associations or housing co- operatives). Private sector tenancy agreements are sub-divided into many types based on the dates that the agreements were formulated on. i) 15 January 1989: If the agreement was formulated prior to 15 January 1989, it makes the tenant either a protected, or an occupier tenant with basic protection. In a ranking of rights by strength among private sector tenants, the protected tenants fare at the top. Their rights include the rights to a fixed rent (that can only be increased in special cases) and period of tenancy, to demand the agreed repairs from the owners, and pass the tenancy over to a successor in case of their demise. However, they will still have to pay the rent to the owner, who would usually not be lodged on the property, and they will not be afforded with food and other such benefits by the owner. A tenant will be an 'occupier with basic protection' if he lives on a property rented by a company, an educational institution, an owner who lives on the same property but does not share it with the tenant, the government, charities, or an employer. ii) Between 15 January 1989 and 28 February 1997: If the tenancy was formulated between 15 January 1989 and 28 February 1997, the tenant could be either an assured tenant or an assured shorthand tenant. A tenant will be an assured tenant if he lives on a property rented by a business company, a holiday resort, an educational institution, the government or charities. By right, an assured tenant can occupy the property unless the owner files for eviction based on the grounds of any tenancy agreements being broken. Also, the tenant has the rights to demand the agreed repairs from the owner, and to pass on the tenancy to a successor after their demise. A tenant will be an assured shorthand tenant if his tenancy agreement is for a tenure of at least 6 months. After the tenure, the owner can file for an order of possession in the court, but he needs to give a notice two months prior to the order. Assured shorthand tenancy is not as strong an agreement as the assured tenancy. An assured shorthand tenant has similar rights as those of an assured tenant. However, by practicing his rights, he may put the renewal of his tenancy agreement by the owner after the fixed tenure in jeopardy. iii) 28 Februaury 1997: All tenancy agreements formulated on 28 February 1997, or after this date, are assured shorthand agreements, unless there is a term in the agreement that specifies otherwise, the agreement is of a successor of a protected tenant, or was formerly a secure tenancy. All occupiers of basic protection fall out of this category, too. Assured shorthand tenancy agreements after the pertinent date may or may not be for the period of at least 6 months. If a fixed tenure is not specified, the agreement would be that of a periodic tenancy. The rights of assured shorthand tenants after 28 February 1997 are the similar to the rights of those before this date, plus one: they should be given the tenancy agreement terms on paper by the owner, otherwise the owner would be committing a criminal offence. 4) Rent: Unless specified in the assured tenancy agreement, the owner cannot increase the rent of an assured tenant, and the tenant will continue to abide by the rent arrangements as par the tenancy agreement. If the owner violates this clause, and if the pertinent agreement is not for a fixed tenure, the tenant may file a case with the Rent Assessment Committee. The same rules apply to tenants holding the assured shorthand tenancy agreement. However, the owner can, after issuing a notice to the tenant, increase the rent, and the tenant may increase his chances of forgoing the rented property if he files a case. For tenants holding a protected tenancy agreement, the owner can only increase the rent of the Rent Officer gives his permission or the tenant provides a written permission for the increase. An occupier with basic protection may jeopardize his chances of staying on the property if he fights the owner over the prospect of an increase in the rent. 5) Repairs: For all types of tenancy agreements in the private sector, the owner has the duty to cater to the basic repairs, and the safety requirements in accordance with the law in the form of the implied rights. However, if the tenants demand their rights in case the owner shows negligence, the owner may decide not to renew their agreements once the tenure is over, or may even file an order for possession. 6) License: Before the owners could sign an agreement of a house in multiple occupation (HMO) with the tenants, they should have a license issued by the local authority. This license implies certain rules which the owner has to follow for the tenancy agreement to be valid. 7) Tenancy Problems: There are some problems faced by the tenants in connection with the tenancy agreement: a) Permission to enter: The owner maintains a right to enter without permission if the agreement assigns him the task of room-cleaning service, or if the accommodation is shared. He can also enter in cases of emergency, but needs to provide a notice twenty-four hours prior to his entry for regular safety and maintenance surveys. No other case grants him the right to enter, unless he has a court order. A court order, again, is required if the tenant has to move out for repairs to take place. b) Bills and Services: The tenant should pay all the bills which are specified in the agreement. However, if the rent or the bills are not paid, the owner does not have the authority stop the supply of the pertinent commodity. Moreover, it is the duty of the owner to provide the services that were arranged through the tenancy agreement, and if he does not, the tenant holds the right to question him for that. c) Offensive Acts: The owner would be committing an offence if he disturbs the tenant or bars him from exercising his rights as agreed upon in the tenancy agreement. If the tenant faces such conditions, he may file a case with the Tenancy Relations Officer. d) Lodgers: A tenant with a secure tenancy agreement under the jurisdiction of a local authority or a housing association can have lodgers (people who share the lodgings of the tenant) without taking the consent of the owner prior to grating the lodging. However, they, and the private tenants, have to seek the consent of the owner before they can rent the property to a sub-tenant (a person who lives on the same property but does not share the lodgings with the tenant), unless the tenancy agreement specifically states their right to do so without the consent of the owner. e) Over-Crowding: In case of over-crowding of the property, the local authority can charge the tenant as well as the owner with offence. Tenants holding both the private sector tenancy agreement and the public sector tenancy agreement should inform the housing authority if they are living in an over- crowded housing. f) Furnishing: If the tenancy agreement states that the rented property is furnished, then the owner has to see to it that the property has adequate furniture to afford the tenant a reasonable living. If this is not the case, then the tenant may try and work things out with the owner. If the agreement agrees, the tenant may move in his own furniture. It is advisable that the agreement should hold an inventory of the furniture, and if it doesn't, the tenant may formulate one, attested by an independent witness. All the furniture dating after 1 September 1990 should be in accordance with the safety guidelines for fire. If there is damage to or loss off the furniture, the tenant must contact the owner and consult the agreement as to whether the tenant, the owner or an insurance company should provide the reimbursements. However, wear and tear of the furniture does not count towards damage. If the agreement states the provision of a television set or video recorder, the tenant must check for its license, otherwise he, and the not the owner, would be liable to a charge for an offence by the court. g) Leaving the property: If the tenant has to leave the property before the end of his tenancy agreement, he must provide a notice to the owner and may have to pay the rent up to the end of the fixed agreement. If he does not provide a notice, he may have to face a charge against him by the court and have to pay the rent up to the time of the expiry of the tenancy agreement or the notice. h) Sham Tenancy Agreement: If in a tenancy agreement, the express terms of a tenancy agreement bar the tenant from using exercising the implied rights, or if they afford the tenant with less rights than those laid down by the implied terms of an agreement, the agreement is known as a 'sham tenancy agreement'. Such an agreement is void and cannot be implied. i) Discrimination against Disabled Tenants: By law, it is an offence to discriminate against disable people. According to the implied terms of a tenancy agreement, if the owner mal-treats a disable tenant, refuses to rent him the property on this ground or denies him the basic amenities and benefits as stated in the tenancy agreement, he is discriminating against the disable tenant, and hence, is committing an offence. The owner is again committing a crime if he denies basic adjustments to the property or the agreement terms to benefit the disabled tenant without any valid reason to do so. However, the owner is not entitled to make such changes as to permanently change the outlook of his property or those changes which cost him more than he can afford. The adjustments also depend upon the duration of the tenure as specified in the tenancy agreement. j) Unfair Tenancy Agreement: A tenancy agreement could also be an 'unfair' agreement. This means either the language is incomprehensible for either of the party, or it contains terms which are made deliberately to place the other party in a harmful or tight spot. Either one of the concerned parties should not have exclusive rights in the agreement; the agreement is supposed to be a mutual arrangement such that both parties clearly understand the terms of the agreement, do not hold a monopoly over the other and are not harmed by it. An agreement containing 'unfair' terms is void in a court of law and cannot be exercised. Works Cited Adviceguide. National Association of Citizens Advice Bureaux. 10 August 2007. . Read More