What type of tenancy agreement form will you need to use for an assured shorthold tenancy and what provisions should be within the agreement?
What is an assured shorthold tenancy?
An assured shorthold tenancy is the most common form of tenancy agreement for use when letting a house or flat in the private rented sector. This type of agreement is the usual form of letting where:
- You are a private landlord and your tenant is a private tenant
- The tenancy began on or after 15 January 1989
- The property is let as separate accommodation
- That property is the tenant’s main or only home.
A tenancy will not be an assured shorthold tenancy where:
- The tenancy began before 15 January 1989
- It is a business or holiday let
- No rent or a very low or very high rent is charged
- You are a resident landlord.
How do I create an assured shorthold tenancy agreement?
Typically, a tenancy agreement for private tenants will automatically be an assured shorthold tenancy, save except where you include a provision within the tenancy agreement form stating that it is to be treated as an assured tenancy or, alternatively, you serve a notice on your tenant either before of after the start of the tenancy to this effect.
Prior to changes made by the Housing Act 1996, landlords were in fact required to do the complete opposite. In other words, for a tenancy to be treated as an assured shorthold, a written notice had to be served on the tenant stating this to be the case.
However, post 28 February 1997, when the changes created by the 1996 Act came into force, the majority of assured tenancies now granted are classed as assured shorthold tenancies by default.
Do I need to use a standard tenancy agreement form?
Although an assured shorthold tenancy can be verbally agreed, oral agreements can be difficult to enforce. It is therefore always best to set out the parties rights and responsibilities in writing.
A standard tenancy agreement form can be obtained from law stationers, housing advice centres or downloaded from the gov.uk website, although there is no legal requirement to use any particular form.
In some cases a standard tenancy agreement form may not fully cater for your needs, for example, you may want to include a clause prohibiting your tenant from keeping certain pets. You may also want to make specific arrangements in relation to gaining access to inspect the property or undertake repairs.
If a tenancy agreement form does not include all the necessary provisions to suit your particular requirements, it is always best to seek legal advice to ensure that any amendments or additional provisions are drafted clearly and are legally compliant.
If you do opt to use a standard agreement form without seeking legal advice, you should make two copies, one for yourself and one for your tenant(s). It is then the responsibility of either party to keep the agreement in a safe place, as it may need to be referred to during the course of the tenancy.
What are the pitfalls of using a standard tenancy agreement form?
If a standard tenancy agreement form does not fit your particular requirements it will need to be amended.
Accordingly, any amended or additional terms must be in plain and intelligible language, and strike a fair balance between your rights and those of your tenant(s), otherwise risk any such term being struck out as unfair.
Further, any additional or replacement terms must not seek to exclude your statutory responsibilities, such as your basic repairing obligations under the Landlord and Tenant Act 1985, nor must they in any way discriminate against a tenant on the basis of race, gender, disability, sexuality or religion.
By way of example, refusing to waive a ‘no pets’ provision for a blind tenant who needs a guide dog could easily be classed as discrimination. The Equality Act 2010 makes it illegal for landlords to discriminate against a tenant because of a disability.
What should a tenancy agreement form contain?
A tenancy agreement is a legally binding contract between you and your tenant(s), setting out the terms of their occupancy of the property in question.
As such, in addition to the details of the parties and a description of the property, the tenancy agreement form should set out the reciprocal rights and responsibilities of both you and your tenant(s).
A tenancy agreement form should contain the following:
- The term of the tenancy, including a start and end date where applicable
- The rent payable, including when and how often this will fall due
- Information on how and when the rent will be reviewed
- The deposit amount and how it will be protected
- Any tenant obligations, for example, payment of rent and use of the property
- Any landlord obligations, for example, to give the tenant quiet enjoyment of the
- property and to carry out any necessary repairs
- Responsibility for minor repairs, maintenance and decoration, other than those you are legally responsible for
- Responsibility for utility and any other bills
- Your right to access the property upon reasonable notice
- Whether the property can be sublet or assigned
- Notice provisions for termination of the tenancy
- Grounds for possession during any fixed term
- Whether the tenancy can be ended early and how this can be done.
For how long should a standard tenancy agreement form last?
When deciding on the term of the assured shorthold tenancy to record on the tenancy agreement form, you have two options: a fixed term tenancy or a periodic tenancy.
A fixed term assured shorthold tenancy is typically for six or twelve months, although an agreement can be for longer. In any event, once a fixed term comes to an end, you can either agree a further fixed term, or you can allow the tenancy to continue on the same rent and terms under a statutory periodic tenancy.
You can also opt for a contractual periodic tenancy, whereby the tenancy will run on a weekly or monthly basis from the outset. That said, this does not mean that the tenancy will run indefinitely, although you would need to wait six months in the event that you wanted to regain possession of the property.
Typically, under an assured shorthold tenancy, you do not need to prove a reason to regain possession of your property, rather you would simply wait the six months, or expiry of any longer fixed term, and serve the tenant with a minimum of two months’ notice.
However, where the tenant is in serious breach of the tenancy, you may want to regain possession much sooner, in which case you will need to rely on one of the grounds for possession set out under the Housing Act 1988, for example, serious rent arrears, anti-social behaviour or illegal use of your property.
Should I seek legal advice when completing a tenancy agreement form?
Having obtained a standard tenancy agreement form you will need to carefully read through its provisions to ensure that it meets your requirements.
In the event that you need to make any amendments or add new provisions you should seek legal advice.
In this way you can feel confident that you not only understand your rights and responsibilities under the agreement, but that the agreement is tailored to suit your needs without the risk of legal redress.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission.
Before acting on any of the information contained herein, expert legal advice should be sought.