Why a written tenancy agreement is necessary

Lawpack on March 27, 2020

Having a tenancy agreement is vital for any landlord. It’s so important to get the tenancy in writing as it protects your property, sets out your obligations and that of your tenant’s, plus it prevents potential disputes between you and your tenant in the future.

Although there is no legal requirement for you to create an assured shorthold tenancy (AST) in England and Wales, all landlords should ensure that their tenants have signed a written tenancy agreement prior to letting them into the rental property.

But in Scotland all landlords must have a written tenancy agreement for the tenancy to be a provate residential tenancy (PRT).

The disadvantages of not getting it in writing 
  • If you make arrangements informally with your tenant, there may be arguments later about the tenancy terms, even if these were clearly discussed when the tenant moved into the property.
  • Once a tenant is in occupation, you cannot then force them to sign an agreement that varies the terms of their tenancy, so it’s essential that this is done before the tenant goes in.
  • You will not be able to use the accelerated possession procedure to evict the tenant, where there is no written agreement.

The advantages of getting it in writing 

  • A formal agreement protects your position and regulates the tenant’s use of the property.
  • If you intend to take a damage deposit, which has to be protected under one of the statutory tenancy deposit schemes, you will need to make an agreement.
  • If no written tenancy agreement is provided, you’re required, by law, to provide the tenant with written details of the main terms of their tenancy within six months; so you may as well provide a proper written agreement to begin with.
  • Housing Benefit offices require tenants claiming benefit to produce a signed tenancy agreement.
Lettings not needing an agreement

Although all tenancies should have a formal written agreement, licences don’t always need them. For example, written agreements are not necessary in the following circumstances:

  • Letting a room in your house to lodgers. However, we still do advise you to get it in writing with a Lodger Agreement.
  • Bed-and-breakfast accommodation.

But even if a formal tenancy agreement isn’t provided in these circumstances, there should always be some paperwork to prove the terms of the letting, in case there is a dispute at a later date.

More information

Landlords: why you can’t disturb your tenants

Lawpack on March 27, 2020

Every tenancy agreement contains what is called the ‘covenant of quiet enjoyment’. This doesn’t just mean that tenants are entitled to a noise-free environment, but that they have the right to live in the property undisturbed.

This means that not only do they have the right not to face eviction, but also that you, as the landlord, should respect their rights and not do anything that will adversely affect their occupation of the property.

The covenant of quiet enjoyment is most commonly invoked to protect tenants whose landlord is trying to ‘persuade’ them to leave, perhaps because they are in rent arrears or because they want the property back for their own use, but they are reluctant to go to court for an eviction notice.

For example, such landlords may constantly visit the property, shout threats at the tenant, and interrupt the gas and electricity supply. This sort of behaviour is illegal and can attract both a criminal charge and make the landlord liable for civil proceedings for an injunction and/or damages.

But the covenant for quiet enjoyment can also apply to other matters. For example, it can cover your failure to comply with tenancy law by not repairing the property

It’s important that you keep the property in proper repair, and that you don’t intrude on the tenant’s privacy. These may conflict, as clearly you will have to go to the property from time to time to carry out your inspections and repairing obligations.

Some tenants may object to this and call it harassment (particularly if they are in rent arrears). If there is a problem of this nature or is likely to be, then you should take care to only visit the property by appointment or by the invitation of the tenant.

You should never use your keys to enter the property without the tenants’ knowledge or permission, other than in cases of genuine emergency.

If the tenant objects to you attending to do inspections or carry out repairs, then you cannot enter the property. This situation is rare, however, and if it occurs, then you should consider whether you should bring proceedings for eviction.

Note that if the tenant’s failure to allow access for repairs is causing the property to deteriorate, this may in itself be a ground for possession. But this should only be used if the deterioration is very serious and urgent remedial work is needed.

If you treat your tenant with respect and comply with your obligations under tenancy law, you will be protecting yourself from any potential claims from your tenants. You will also find it easier to enforce your own rights against the tenant, should this be necessary.

Although a covenant of quiet enjoyment is not implied into licence agreements, licensees have the right to use the property for the purpose for which occupation was granted, which gives them a certain amount of similar protection for the duration of the licence agreement.

Which tenancy agreement do I need?

Lawpack on March 27, 2020

You’ve got your rental property and found your tenant – all you need to do is get them to sign a tenancy agreement. But which one do you need.

If you’re a landlord who thinks tenancy agreements are unnecessary, think again! A tenancy agreement is vital as it sets out the rights and obligations between you and your tenant and, as a result, protects your property and your finances. But you must use the correct tenancy agreement for the right type of tenancy concerned.

Lawpack has a wide range of tenancy agreements, including assured shorthold tenancy agreements, non-assured shorthold tenancy agreements, private residential tenancy agreements, company let tenancy agreements and lodger agreements. But which tenancy agreement should you use?

England and Wales

AST or non-AST?

Most tenancies in England & Wales are assured shorthold tenancies (ASTs) and are regulated by the Housing Act 1988.

Some tenancies are exceptions, however, and you may need to use a non-assured shorthold tenancy agreement if any of the following applies:

  • The rent is at the rate of over £100,000 a year
  • The tenant is living in self-contained premises in the same building as you
  • The tenant is a limited company
  • The property isn’t the tenant’s main home (e.g. a weekend cottage)
  • It’s a holiday let

Find out more about non-AST tenancy agreements and which one you need to use below.

Assured Shorthold Tenancy (AST)

Assuming your tenancy is an AST, slightly different forms of tenancy agreement need to be used depending on whether:

  • there is one or more tenants living in the whole flat or house, or
  • there are a number of tenants who all have separate tenancy agreements for their own room, with shared use of the rest of the property

Lawpack publishes the following AST tenancy agreements you can use:

Unfurnished Tenancy Agreement / Furnished Tenancy Agreement

You can use either of these AST tenancy agreements if you, as the landlord, don’t live at the property. Both tenancy agreements can be used for a single tenant who occupies the property on their own, or a group of tenants who jointly occupy the property and share responsibility.

If the tenants are sharing and sign this tenancy agreement as a group, it’s best if they are all family or friends as problems can arise if you’re letting to people who don’t know each other and they want to leave the property at different times.

Tenancy Agreement for a Room

It may be preferable for you to get them to sign a tenancy agreement for their individual room, which gives them shared use of the rest of the property. When giving your sharing tenants a separate tenancy agreement, it’s best to use a non-resident house share/flat share agreement.

This tenancy agreement can be used if the tenant is living in a room in the property where you, as the landlord, are not resident.

Under this AST tenancy agreement, the tenant has exclusive occupation of their designated room and will share the use and facilities of the house or flat (e.g. bathroom, toilet, kitchen and sitting room) with other occupiers of the furnished property.

Non-Assured Shorthold Tenancy

In England & Wales non-assured tenancy agreements are also known as ‘common law’ tenancy agreements as they are governed by underlying common law and are not regulated by the Housing Act 1988.

Lawpack has the following non-AST tenancy agreements you can use:

Contractual Tenancy Agreement (Non-Assured Shorthold Tenancy Agreement)

This non-AST tenancy agreement (for England & Wales) should be used if:

  • The annual rent exceeds £100,000 a year
  • The premises being let is self-contained accommodation in a property that has been converted from a single property to multiple units (e.g. a house converted into flats), where you (the landlord) live
  • The property isn’t the tenant’s principal home (e.g. a weekend cottage)

This common law tenancy agreement can be used for a single tenant who occupies the property on their own, or a group of tenants who jointly occupy the property and share responsibility.

Company Let Tenancy Agreement

This Company Let Tenancy Agreement should be used if you want to let a house or flat in England or Wales to a company.

This common law tenancy agreement should be used where the tenant is a company and the occupier of the property is an employee or visitor of the company, with their family.

What if I use an AST by mistake?

If you accidentally use an AST instead of a common law tenancy agreement, don’t panic. It doesn’t mean that your tenant isn’t entitled to live in the property and doesn’t have a proper tenancy. But some parts of the tenancy agreement – those relating to the AST – will be misleading and could cause problems later down the line (e.g. you may have difficulty evicting the tenant at a later date).

Other letting agreements

Holiday Letting Agreement

This rental agreement can be used if you’re letting out a furnished property in England & Wales on a holiday let basis (e.g. for a limited period or holiday). It can be used with most types of holiday let properties (e.g. a house, apartment, flat, caravan or cottage).

The Holiday Letting Agreement is specifically excluded from the Housing Act 1988, so tenants have no security of tenure and must vacate the property at the end of the fixed term, or if found to be in breach of the terms of the Holiday Let Agreement.

Lodger Agreement

You can use this Lodger Agreement when you want to rent a room in your furnished home and are happy for the lodger to share the common parts of the property (e.g. bathroom, toilet, kitchen and sitting room) with you. But this Lodger Agreement can only be used in situations where the property is your principal home.

Scotland

Private Residential Tenancy agreement (PRT)

PRTs are similar to ASTs in England & Wales. You can use a short assured tenancy agreement if you, as the landlord, don’t live at the property.

Lawpack has the following Scottish PRT tenancy agreements you can use:

Unfurnished Tenancy Agreement / Furnished Tenancy Agreement

Both of these PRT tenancy agreements can be used for a single tenant who occupies the property on their own, or a group of tenants who jointly occupy the property and share responsibility.

Tenancy Agreement for a Room

This tenancy agreement can be used if the tenant is living in a room in a furnished property where you, as landlord, are not resident.

Under this PRT tenancy agreement, the tenant has exclusive occupation of their designated room and will share the use and facilities of the house or flat (e.g. bathroom, toilet, kitchen and sitting room) with other occupiers of the property.

Other letting agreements

Holiday Letting Agreement

This agreement can be used if you’re letting out a furnished property in Scotland on a holiday let basis (e.g. for a limited period or holiday).

It can be used with most types of holiday let properties (e.g. a house, apartment, flat, caravan or cottage).

The Holiday Letting Agreement is specifically excluded from the Housing Act 1988, so tenants have no security of tenure and must vacate the property at the end of the fixed term, or if found to be in breach of the terms of the Holiday Let Agreement.

Lodger Agreement

You can use this Lodger Agreement when you want to rent a room in your furnished home and are happy for the lodger to share the common parts of the property (e.g. bathroom, toilet, kitchen and sitting room) with you. But this Lodger Agreement can only be used in situations where the property is your principal home.

Northern Ireland

Private Tenancy

Lawpack has a Northern Ireland Tenancy Agreement which complies with the regulations that apply to private residential tenancies in Northern Ireland.

This private tenancy agreement can be used for a single tenant who occupies the property on their own, or for a group of tenants who jointly occupy the property and share responsibility.

The terms and conditions included in this tenancy agreement meet the legal requirement in Northern Ireland that a ‘Statement of Tenancy Terms’ must be given to the tenant. Plus it includes a Property Inventory of Furnishings, which all tenancies are required to have by law in Northern Ireland.