Nine point guide to spotting an out-of-date tenancy agreement

Tuesday, December 6th, 2022 - By Robin Stewart, Senior Associate Solicitor, Anthony Gold

It is very important for landlords and letting agents to keep their tenancy agreements updated. Housing law changes constantly, and an old agreement will contain references to legislation which has been repealed.

An out-of-date template will not accurately reflect the rights and duties of the landlord and tenant. Implied terms, such as the landlord’s obligation to keep a property fit for human habitation, have effect whether they are written into the contract or not – so an old agreement will not tell the parties about these rights and obligations.

There is also a real risk for landlords that clauses in their contract will be unenforceable if they have not been reviewed for a long time. If an obligation placed on a tenant in a tenancy agreement is unfair it will be void under the Consumer Rights Act 2015. Outdated tenancy agreements are more likely to contain clauses which are unenforceable.

Our nine point guide for signs that a tenancy agreement is out of date

Sometimes a copyright notice or version number will tell you when a tenancy agreement was written. If there is not anything recording the year the agreement was drafted, there are a few clues you can rely on to spot old tenancy agreements, and here is a sample of some of them:

1. References to the Rent Act 1977
The Rent Act 1977 was essentially replaced by the Housing Act 1988 (except for existing tenancies) so in the majority of cases refences to the Rent Act mean that a tenancy agreement should have stopped being used a long time ago.

2. CORGI registered plumbers
The Gas Safe Register replaced the CORGI registration in 2009, so a tenancy agreement which still makes reference to CORGI registration probably has not been updated since then.

3. 14 days to protect deposits
The original deadline to protect a tenancy deposit was 14 days after receipt. This was changed in the Localism Act 2011 to 30 days, with effect from 6 April 2012.

4. Wrong Electrical Regulations
I see reference to the Electrical Equipment (Safety) Regulations 1994 in professionally produced tenancy agreements all the time, but these regulations were revoked by the Electrical Equipment (Safety) Regulations 2016 (except in relation to products ‘place on the market’ before the 2016 regulations came into force). Whether the 2016 regulations have any relevance to tenancies is a separate question.

5. Old lists of grounds for possession
New grounds for possession are added from time to time. If an agreement contains a list of the grounds for possession which are available to the landlord, but does not include newer grounds, that tells you that the agreement might need an update.

6. Not dealing with Right to Rent
There is no requirement for a tenancy agreement to refer to the tenant’s ‘Right to Rent’ under the Immigration Act 2014 but most modern agreements designed for use in the private rented sector in England do make some reference to it.

7. Unfair terms
The ban on unfair terms in consumer contracts (including tenancy agreements) is not particularly new, but the law on unfair terms was expanded in the Consumer Rights Act 2015. That Act extended the requirement of fairness to ‘individually negotiated clauses’ which were previously exempt. Sometimes a tenancy agreement will try to slip in an unfair term under the guise of an individually negotiated term. That was always a dubious practice, but now it cannot work as a ‘loophole’.

Older agreements might contain clauses which seemed acceptable at the time because they were common, but now seem obviously unfair. In particular, clauses which are discriminatory in their effect (e.g. banning certain methods of cooking) are now more widely recognised as completely unacceptable.

8. Out of date repair clauses
This example is more up for debate than the others, because there is no need for a tenancy agreement to refer to ‘fitness for human habitation’. The Homes (Fitness for Human Habitation) Act 2017 implies into tenancy agreements a contractual commitment by the landlord to keep the property fit for human habitation. If there is a reference to fitness for human habitation, that suggests that the landlord has updated the agreement to reflect the landlord’s full obligations.

9. Interest rate higher than 3% above the Bank of England base rate
The level of interest on unpaid rent which can be charged to tenants was capped at 3% above the Bank of England base rate by the Tenant Fees Act 2019. A tenancy agreement which claims a higher rate needs to be updated.

How to update tenancy agreements

Landlords with a small portfolio will probably not find it cost effective to instruct a solicitor to update their tenancy agreements. However, amending your own contract is very risky – writing and amending contracts is a skill, and sometimes the attempts of landlords to write in ‘legal language’ results in garbled nonsense. Most private landlords would be better to buy an agreement or join an organisation which provide free templates to their members.

Agents and institutional landlords are in a different position, and having template agreements updated regularly is a good idea not just to avoid the risks of an out of date agreement, but also because your documents are a key part of the presentation of your service – a tenancy agreement filled with out of date references will not put savvy landlords and tenants at ease.

Robin Stewart is a Senior Associate Solicitor at Anthony Gold Solicitors. He can be contacted at ros@anthonygold.co.uk.

Please note that the views and opinions expressed in these blogs are those of the author and do not necessarily represent the views of London Property Licensing. These blogs are designed to stimulate discussion and debate within the property industry. This article does not represent legal advice and should not be treated as such.

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