As a landlord, you may think you have free rein to tailor your tenancy agreement to protect you as much as possible. But beware, OFT guidelines are strict on clauses that impose unfair conditions, penalties or that are ambiguous and favour the landlord to the detriment of the tenant. Upad, the largest online letting agent, looks at the clauses you need to be wary of.
You may want to add a clause prohibiting the keeping of pets at the property, but to state ‘No pets under any circumstances’ in the agreement would fall foul of the regulations. In a European case, the judge pointed out that a blanket ban would stop the tenant even keeping a goldfish! It would also prohibit a tenant who is blind or partially sighted from keeping a guide dog, which would be counted as disability discrimination. The clause should contain ‘special wording’ so as not to invalidate it i.e. ‘Not to keep animals or pets at the Property without the Landlord’s or the Agent’s written consent which will not be unreasonably withheld‘.
The fact that the clause states that your permission should be sought before keeping pets does not mean that you have to agree to it if your tenant should ask, and means the clause is deemed fair should you need to refer to it at the end of the tenancy if the tenant has disobeyed your reasonable refusal.
Another common trip-up is to do with penalties for missed rent payments. It’s perfectly valid to charge a tenant for any administration costs in relation to missed rent payments (sending out letters to chase up monies owed, for example) but these must be reasonable and relevant to the actual costs you’ve paid as a result. A ‘penalty’ should be reimbursement to you for costs incurred, and should only put you back in the position you would have been had the breach not occurred.
A clause related to noise cannot simply ban a tenant from making, or specify when, they cannot make noise that would be audible outside the property. But of course you don’t want the neighbours calling you up to complain, so how can a fair clause tackle this? Under the Noise Act 1996, excessive noise between 11pm and 9am is an offence and so this should be highlighted in the clause, but the key point is that the noise must not cause a nuisance or annoyance to surrounding neighbours and occupiers. If you do receive complaints later, try talking to your tenants first and highlight the clause and if the problem persists then you can contact the local council for further action.
Just as with the pet clause, re-decoration should not be denied ‘under any circumstances’, but prohibited without the Landlord’s agreement which will not be unreasonably refused. So you may reasonably refuse a tenant painting the living room in black paint but agree to a neutral colour! Make sure any agreements are in writing.