Martin Callan, Bowling & Co Solicitors
It is important to ensure that your Tenancy Agreement is both legal AND also provides you with the highest level of protection the law will allow. Any new tenancy will automatically be an Assured Shorthold Tenancy Agreement (AST) under the provisions of the Housing Act 1988 (as amended). What then should your AST contain to protect you? The law requires that the AST agreement must state that it is an assured shorthold tenancy agreement within the meaning of Part 1 of the Housing Act 1988 (as amended).
This is often only done by having the heading “Assured Shorthold Tenancy Agreement” at the top. Because the legislation dictates what rights both parties have it is prudent to refer to the legislation itself rather than just calling the agreement and “Assured Shorthold Tenancy”. The names of the parties to the agreement and their status should be clearly and correctly included. So, the full name of the Landlord and that he is the “landlord” should be stated, and similarly for the tenant. This is often best achieved by having an opening list of “definitions”. This adds clarity to the agreement and ensures both parties understand exactly what the agreement means. So the premises, be it a house, flat or room in a property needs defining, as do any fixtures and fittings, rent, deposit and so on.
Once appropriate definitions have been agreed you can then turn to the specific terms and conditions of the agreement. This will include any covenants (promises) between you and the tenant as well as any other conditions (restrictions) which you want to include. Drafting the terms and conditions of the tenancy agreement often leads to ambiguity if not properly done. For example, a covenant by the tenant “To keep the items in the Inventory and Schedule of Condition in their present state of repair and condition (fair wear and tear excepted)” is open to ambiguity as “fair wear and tear excepted” doesn’t provide any real guidance as to its intended meaning. A less ambiguous clause would be “Keep the items in the inventory in their present state of repair and condition (wear and tear due to reasonable and normal use and damage by accidental fire excepted) and replace with identical items where possible or similar articles of at least equal value (or if the Landlord so requires pay to the Landlord the value of) all items as may be destroyed or so damaged as to be incapable of being restored to their former condition (except such as may be destroyed or damaged by accidental fire).”
Apart from the practical terms and conditions you should also ensure your tenancy agreement contains a Housing Act 1988 Ground 1 Notice to ensure that the quickest and most effective means of recovering possession is available to you. Ground 1 possession is based on the Landlord occupying the dwelling as their principal or main dwelling prior to the agreement and is mandatory, so a court must grant possession.
If you have any questions relating to this article or the issues raised in it please email martin.callan@bowlinglaw.co.uk.
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