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.