The dangers of changing a tenancy agreement

by David Smith of Anthony Gold Solicitors

Solicitor David Smith is a landlord and tenant specialist and approver of Lawpack's tenancy agreements

It's always difficult for a landlord who is using a pre-written tenancy agreement to adapt it to their specific requirements and the relationship they have formed with the tenant. 

The obvious temptation is to amend the provided agreement so that it more accurately reflects the situation or to make a separate side agreement with the tenant to overcome clauses in the rental agreement that are unsuitable.

Both these courses of action can be dangerous. Some clauses reflect legislative provisions and so changing these clauses in a tenancy agreement is simply not possible, some tenancy agreement clauses are vital to protect the landlord’s interests, while other clauses are more amenable to change.

Clauses which relate to repairs that the landlord will carry out at the property, clauses which relate to the protection of the tenant's deposit, and those clauses that define the type of the tenancy are simply reflections of legal obligations and other provisions, and so changing these clauses in a tenancy agreement is unlikely to be useful.

Tenancy agreement clauses that impose obligations on the tenant can be changed fairly easily but landlords must be wary of the Unfair Terms in Consumer Contract Regulations that prohibit unfair terms in rental agreements. 

More information on their effects can be found in the booklet “Guidance on Unfair Terms in Tenancy Agreements” produced by the Office of Fair Trading and freely available from them. 

However, tenancy agreement clauses which:

  • impose obligations on the tenant to do things which are the responsibility of the landlord, such as repairs;

  • impose excessive responsibilities on the tenant, such as hoovering daily or taking off shoes before entering the house; or

  • clauses which impose excessive fines or penalties on the tenant, such as a payment of £100 for each late payment of rent;

will be deemed unenforceable as a result of these regulations.

The other key clause which a landlord should never change in a tenancy agreement is the so-called ‘forfeiture’ clause. This is the clause in the agreement which states that if the tenant goes into rent arrears for more than a certain number of days, or leaves the property empty, or breaches the terms of the agreement, then the landlord can re-enter the property and the tenancy will end. 

Unfortunately, landlords cannot take this clause at its word and they may not enter the property while the tenant remains in occupation, but the existence of this clause is vital to recovery of possession during the term of the tenancy. 

If this clause is removed, then the Courts cannot and will not give possession during the fixed term of the tenancy and the landlord will have to wait to the end before having any prospect of recovering possession.

Ideally, if changes to a tenancy agreement are to be made, they should be done by striking out clauses within the agreement and inserting clauses in a suitable space at the end. 

Both parties should initial each such change and sign any added pages. This way there is no scope for argument as to whether each change has been agreed. 

Putting amendments and variations into separate documents is always dangerous as it leaves open an argument that there were further variations which have been recorded elsewhere or were agreed verbally.

Other information

Published on: August 23, 2010

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