Tenancy Agreements Conference Making and Varying Your Tenancy Agreement Christopher Skinner, Associate Thursday, 12 September 2013
The Basic Rules Assured Tenancies can only be varied by agreement between the parties Secure Tenancies can only be varied by agreement following Section 103 Housing Act 1985 Rent and Service Charges? Consultation Unfair Terms in Consumer Contract Regulations 1999 Office of Fair Trading guidance Do not discriminate! Which Agreement to vary?
Assured Tenancies Not covered by legislation What does the Tenancy say? Individual negotiation? Contractual condition to consult? Procedure for consultation? NB Assured Tenants have to agree to the change, preferably by signing the varied Agreement. Landlord-friendly variation clauses? The Housing Ombudsman could be watching!
Assured Tenancies Adoption of Section 103 Housing Act 1985 style consultation Peabody Housing Trust v Reeve [2008] Benefit Reforms and under-occupation mutual exchange/assignments. Opportunity to vary Agreements?
Secure Tenancies Section 103 Housing Act 1985 Process To Be Followed Section 102 states as follows: 1. The terms of a Secure Tenancy may be varied in the following ways, and not otherwise a. by agreement between the landlord and the tenant b. to the extent that the variation relates to rent or to payments in respect of rates [council tax] or services, by the landlord or the tenant in accordance with a provision in the lease or agreement creating the tenancy, or in an agreement varying it; c. in accordance with Section 103 (notice of variation of periodic tenancy).
Section 103 - Preliminary Notice Informs tenant of intention to serve Notice of Variation Specifies the proposed variation and its effect Seek comments on the proposed variation and then consider them!
Notice of Variation Notice of Variation is served It must state what the variation is The date on which it takes effect (must be at least 4 weeks and accompanied by information often set out on an FAQ sheet) NB it is just the Terms and Conditions which are being varied, do not mistakenly grant new Tenancies Clear signature page is useful and should be sought to avoid any doubt
Best Practice on Consultation Clarity when explaining the change and the effect Where Organisations still have mixed tenure, seek to use a fair and comparable system Explain the need for the new Tenancy clause do not make assumptions on understanding Use plain English Make sure you are Equality Act compliant, i.e. translation services, braille, CD recordings/appointments Call scripts for customer-facing staff?
Best Practice on Consultation Seek tenant engagement use pre-paid envelopes, easy-to-use feedback forms, surgeries, specific email addresses Social media Advertise widely through estate notice boards, tenant newsletters, websites, local newspapers Engage with tenant associations, action groups, etc Properly consider responses to the preliminary notice and keep records of follow-up discussions Reply personally to tenants who correspond with your Organisation
Proving The Change Was Made Correctly This all comes down to record-keeping because that is evidence Housekeeping keep the entire Notice of Variation, not just signature page Put the tenancy terms on the Housing File. Seek to make life easier as time goes by Keep notes of the assistance given to tenants, particularly vulnerable tenants If you are involved in litigation, the onus is on you to prove the change has been made correctly and legally
Practical Thoughts Considering incentivising residents to engage and return signed forms Watch out for tenant-suggested amendments and correct person signing the document Good opportunity to conduct tenancy audit? Underoccupation, household makeup, etc Good opportunity for canvassing service delivery Before starting the process, ensure your internal systems are ready to account for those accepting change and those not, particularly with Assured Tenants
Practical Thoughts Make sure your Organisation is aware of the updated change, particularly for the purposes of legal notices.
The content of this presentation is for general information purposes only. It does not constitute professional advice (legal or otherwise) nor should it be used as such for any specific situation. The information should be read in the context of the entire presentation. We therefore cannot accept responsibility for any act and/or omission based on the material contained in it Capstick LLP 2013