Varying your tenancy agreement

Transcription

1 September 2014 Varying your tenancy agreement Gail Sykes Partner T: E:

2 Why do landlords vary their agreements? Changing the rent Changing service charges Modernising and reflecting changes in the law Improving the agreement to address problem issues

3 Current issues The Anti Social Behaviour Crime & Policing Act 2014 amend to allow use of mandatory possession grounds New issues hoarding, parking commercial vehicles Reflect changes in the law for example Localism Act mutual exchange mechanisms

4 Secure tenancies Rent changes via written notice Other changes using the statutory s103 Housing Act 1985 mechanism: Preliminary notice setting out proposed variations and inviting comments Notice of variation confirming changes and effective date of variation

5 Secure tenancies Avoid challenges by: Serving all tenants whose agreements are to be varied with preliminary notice and notice of variation Providing accessible routes for tenant comments Providing adequate time to consult Leaving the required 4 weeks/one rental period (whichever is greater) from variation letter to date variation takes effect

6 Assured tenancies No statutory mechanism for variation other than rent No variation clause? The landlord may only vary with the written agreement of the tenant Agreement may contain a specific clause allowing variation generally or specifically (e.g. service charges only) Section 13 Housing Act 1988 provides a mechanism for rental changes but will apply if the agreement is silent (but a clause in the tenancy agreement will take precedence)

7 Assured tenancies What can go wrong? Peabody Trust v Reeve [2008] Two variation clauses in the same agreement conflicted The uncertainty in the agreement decided in favour of the tenant Clause was too wide and created an imbalance between the parties to the detriment of the tenant Clause not enforceable

8 UTCCR So what does an unfair variation clause look like? Term not individually negotiated Contrary to the requirement of good faith Causes a significant imbalance in the parties rights and obligations Detriment to the consumer Test applies equally to any term in the agreement

9 Assured tenancies, what else goes wrong? A failure to follow the variation mechanism Rent increases are variations and can be a minefield. Follow s13 or the contractual rent increase clause carefully or face the consequences Tenancies without a clause may be difficult to manage

10 Getting it right to start with Given the risks, it is better not to vary an agreement more than is absolutely necessary Review agreements you are granting now to ensure they have been amended to (for example) reflect succession rights post Localism Act Get the drafting right for example, service charge clauses need to be fit for purpose and allow you to charge for services provided Don t simply reproduce outdated clauses in new agreements extended notice period for NOSPs, limiting grounds for possession you will use

11 Questions??

12 September 2014 Thank you Buckles Solicitors LLP Grant House 101 Bourges Boulevard Peterborough PE1 1NG Telephone: Buckles Solicitors LLP 3 St Mary s Hill Stamford PE9 2DW Telephone: enquiries@buckles-law.co.uk Buckles Solicitors LLP is authorised and regulated by the Solicitors Regulation Authority Registered in England No OC311739