Tenancy agreements: staying up to date and 'COVID-19 compliant'
As we’re all well aware, lettings legislation is ever-changing. Some of the amendments and new rules are around how things are done and just affect processes, but some have a direct impact on the legal agreement between landlords and tenants, meaning the tenancy agreement has to be updated. One recent example of that is the Homes (Fitness for Human Habitation) Act that came into force in March 2019 for new tenancies and in 2020 for existing ones.
Almost all contracts in the Private Rented Sector in England today are Assured Shorthold Tenancies (ASTs). They form the basis of the relationship between you, your tenant and the property. We’re sometimes asked by landlords whether they have to use an AST. The answer is that the type of tenancy created depends on the circumstances of the let. But in most cases, if you allow a tenant to occupy a property and they pay rent, this will be legally considered an AST, regardless of whether another agreement (e.g. a licence) has been signed and even if there’s no written agreement at all.
However, we’d certainly say you should never allow a tenant to occupy a property without written terms and conditions, signed by both parties. That way, if you run into any problems down the line, you’ve got clear proof of what was agreed at the outset.
The first thing to check is that you’re using a tenancy agreement that takes account of the most recent legislation. So, find out when the tenancy agreement you’re using was last updated and make sure it’s the most up-to-date version.
And the first thing to check is that you’re using the most recent version of the Assured Shorthold Tenancy that includes the latest legislation. You can find an up-to-date model agreement on the government website.
10 things to include in a tenancy agreement
- Landlord and tenant details.
- Address of the property.
- The tenancy start and end date. Although there is no legal minimum or maximum term for an AST, they commonly have an initial fixed term of 6 or 12 months. However, if you have a buy-to-let mortgage, check the terms as your lender might limit the maximum term. After that, the tenancy can either end or continue in one of two ways:
a. it can be renewed by signing a new AST or ‘renewal form’
b. no action can be taken, in which case the contract simply becomes a
‘periodical’ or ‘rolling’ tenancy that can be ended at any point by either party giving the required notice.
- Rent details: the rent payment, its due date and the way it will be paid. If you want to charge interest on late rent payments, you must state the interest rate and when and how it will be applied – bearing in mind this is currently restricted to 3% above bank base rate under the Tenant Fees legislation.
Tip: Make sure you state that rent is payable in advance, otherwise it will be payable in arrears by default.
- Details of rent views, explaining when and how reviews will take place.
- Deposit information: which explains how much, how its protected and when all or part of the deposit can be withheld. Note that if this is not done, you may not be entitled to make any deductions at all!
- Tenant obligations/responsibilities. A tenant needs to know what their maintenance responsibilities are, especially around keeping the property wind and watertight and protecting it against condensation and frost damage.
- Landlord obligations/responsibilities. Be aware of statutory legal rights and responsibilities – and understand that they apply even if you remove them from the agreement!
- Bills: what’s included and what’s the tenant is responsible for? E.g. if council tax and broadband are included in the rent, this should be clearly stated in the agreement.
- Whether pets are allowed in the property. If you are going to allow pets in your rental property, you may want to consider additional clauses and include these in the agreement or set out terms in an additional document, which would then be referred to in the main body of the agreement. Remember these need to be ‘fair’ and make sure they can be applied legally.
While most rights and responsibilities in a tenancy agreement are the same throughout the UK, landlords in Scotland need to use a private residential tenancy agreement, which has some different terms, e.g. those relating to maintenance responsibilities under the Repairing Standard. If you’d like to know more about the differences or want to check anything else regarding the agreement, you can always speak to one of the Your Move team in your local branch.
Some tenancy law is different in Wales, so do check the requirements for tenancy agreements: https://www.rentsmart.gov.wales/en/tenant/
Can I make changes to the standard AST?
You can make changes, but you should be aware that just because you put something in the agreement, it doesn’t necessarily mean anything!
Laws passed in parliament (statutory laws) are legally binding and enforceable, regardless of what is stated in the tenancy agreement. So, even if you remove certain terms from the agreement that you and your tenant both sign, they still apply. Similarly, if you add a clause that contravenes a tenant’s statutory rights – e.g. if you inserted something saying you could evict them without any notice for having a loud party - that clause would be invalid, because all agreements must be fundamentally ‘fair’ and lawful. And it’s important to understand you cannot evict tenants other than through the courts, using the proper procedures.
The AST as it stands should be appropriate for your let. But if you do want to add or amend any terms or clauses, we’d advise you consult a lettings legal specialist to make sure the changes are legally sound.
Make sure you can always enforce your agreement
It’s important to know that if you fail to do certain things, you might not be able to enforce the tenancy agreement – i.e. you might not be able to get rid of a tenant, even if you have valid grounds! Here are four key things to take care over:
If the deposit is not correctly protected and/or the required prescribed information is not given to the tenant, this could affect your rights to end the tenancy – regardless of the length and notice period stated in the agreement.
- ‘How to rent’ guide
You must provide your tenant with a copy (printed or digital) of the latest version of the government’s ‘How to rent’ guide, which gives them basic details about their rights and responsibilities and provides checklists for the various steps in the process of renting. If you don’t provide this information, you may be unable to carry out an eviction under a section 21 notice.
Although certain things may be stated in the agreement as the tenant’s responsibility, ultimately you have the legal duty to ensure the property remains in a good, safe condition. For example, while you may have specified that the tenant must keep the property well ventilated to help avoid surface mould forming, if they fail to do so and mould subsequently becomes an issue, you must fix it in order to comply with the Homes (Fitness for Human Habitation) Act. If you don’t, you may be unable to evict the tenant.
4. Gas Safety Certificates
If your property has gas, you must have an annual Gas Safety Inspection carried out. The inspector will provide you with a certificate, which must be given to your tenants, both before they rent the property and annually thereafter. If you have not had the inspection carried out before the tenants move in and/or you don’t give the certificate to the tenants, you may not be able to serve a valid section 21 notice.
Temporary changes during the COVID-19 pandemic
Whatever is currently in your tenancy agreement changes made during COVID-19 may mean some of the clauses have changed during these tricky times.
Visiting a property
Only make essential visits in person. As well as giving your tenant the required 24 hours’ notice (as stated in the tenancy agreement), you should take the following steps:
Check the current national and local COVID-19 regulations regarding the number of households that can meet indoors
Check the tenant will allow the visit
are they currently isolating or shielding?
do they currently have any symptoms of coronavirus?
have they had or tested positive for COVID-19?
make sure social distancing is observed
wear a mask
avoid touching surfaces as far as possible
- try to have the doors and windows open as much as you can, to help prevent infection.
Read more in our blog: ‘Letting legally and safely during the Covid-19 crisis’.
Houses in Multiple Occupancy
It may sound obvious, but people sharing a house form a ‘household’ under the COVID-19 definitions. In the case of Houses in Multiple Occupancy, where unrelated people living independently from each other share the property, the current regulations mean your tenants have now become more ‘linked’ than they were before. If one of them gets sick, for example, everyone living in the property will have to self-isolate, so their actions and activities have more of an impact on their housemates than usual.
As a matter of best practice, you should do all you can to reassure your tenants and help them stay safe.
Make sure they know what to do if someone in the house displays symptoms or tests positive – you could email them the government guidance.
In communal areas:
Ventilate as much as possible
Supply hand sanitiser and surface wipes and make sure tenants know to disinfect surfaces after use
Consider arranging for more frequent cleaning, e.g. if the tenancy agreement states it’ll be carried out fortnightly, consider changing that to weekly. If you have to cancel cleaning services because tenants are self-isolating, make sure you supply the tenants with enough cleaning materials to do it themselves
In tenants’ rooms:
Make sure they have a good WiFi service
If they’re working from home, consider if they need a suitable desk and chair
During the crisis, you might have difficulty arranging for some regular maintenance and legally-required works to be carried out. That could be for a number of reasons:
restrictions in your area
tenants having to self-isolate
tenant being worried about having people in the property
contractors who aren’t prepared or available to visit
In that case, make sure you document all your communications clearly, so you can show every effort was made to comply with your obligations under the tenancy agreement. Any delayed or postponed work should be rescheduled as soon as it’s safe and possible to do so.
Notice period for evictions
If you want to end a tenancy via a section 21 notice, you’ve now got to give your tenants six months’ written notice (as of 29th August). If you’re evicting them via section 8, the notice period may be shorter, depending on the reason. (See our blog covering the latest rules around evictions.)
Cleaning between lets
If you have a change of tenancy during the pandemic, we’d suggest you use a professional cleaning company and specify that you require a deep clean with full disinfection of all surfaces. You are legally obliged to provide safe accommodation, so it’s vital you do all you can to make sure there’s no possibility of cross-contamination between tenants. Ideally leave 72 hours between lets.
If you would like to discuss anything relating to your tenancy agreement, you can find the contact details for your local branch here.