Help with changes in rental contract on costs/charges and how this might affect me as tenant

frosch411

Hi Forumites

Apologies in advance if this is a lengthy post, I greatly appreciate some thoughts/advice on my contract renewal (private renting via estate agency), i.e. some specific clauses on "Cost and Charges" and their validity as I am concerned about my position as a tenant being weakened in the new TA by being made liable to a much greater extend than in previous TAs. Maybe I am just being paranoid but the estate agency setting up my renewal has made mistakes on every occasion I needed to sign with them (initial TA and all subsequent renewals including this latest one; they admitted the mistakes when I challenged them on omissions etc.). This means I am now very wary regarding their contracts and explanations when challenged.

I've tried to get more knowledgeable with the "How to Rent" brochure I was provided with, via the Shelter website, and of course the "Tenancies in Eng/Wales: Guides for landlords and tenants" thread here. 

My previous ASTs stated:

"Costs and Charges 

3.91/3.94 To protect the Landlord or Landlord’s Agent from loss arising from a claim that may be brought against the Tenant as a consequence of a breach by the Tenant of any covenant or obligation contained in this Agreement. Such loss shall be deemed to include any charges which the Landlord or Landlord’s Agent may reasonably incur in connection with proceedings in a court of law against the Tenant but without prejudice to a Tenant’s right to have such costs assessed by the relevant court. 

3.92/3.95 To indemnify the Landlord or Landlord’s Agent for any loss incurred by the Landlord or the Landlord’s Agent resulting from the dishonouring of any cheque issued by the Tenant or by a third party on the Tenant’s behalf or for any loss arising from the cancellation or non-completion of a standing order payment by the Tenant or the Tenant’s bankers." 

The new, not yet signed renewal however states:

"The Tenant(s) agree(s) to the following:-
[...]
3.92 To pay to the Landlord or the Landlord's Agent all reasonable costs and expenses incurred by the Landlord or the Landlord's Agent (including but not limited to the costs and fees of the Landlord's solicitors and other professional advisors) in respect of: - 

3.92.1 the recovery from the Tenant of any Rent or any other monies owed in breach of this Agreement; 

3.92.2 the enforcement of any of the provisions of this Agreement; 

3.92.3 the service of any notice relating to a breach by the Tenant of any of the Tenant's Obligations under this Agreement whether or not the breach shall result in court proceedings except where a court orders the Landlord to pay his own costs in any court proceedings. 

3.93 To pay part of the costs, as agreed and set out in the Tenants Application Form, for the preparation and grant of this Agreement, including any reasonable fees that may be payable to a Superior Landlord."

The new, not yet signed renewal seems much more draconian in terms of what I may be liable for unless I am misunderstanding the legalese.

Am I right or wrong to think that the proposed sections 3.92-3.93 appear to not be in compliance with permitted fees, particularly section 3.93. as any charges for setting up the tenancy or contract are banned?

I queried this with the estate agency and referred them to page 6 of the "How to Rent" guide March 2023 as to which fees that letting agents and landlords are permitted/prohibited to charge tenants.
Their response was to quote me back verbatim with the below from the Shelter website on fees that landlords and agents can charge:





Thank you for making it to the end of this post and for any thoughts on this .

  

anselld

Before we start on the new agreement, you hopefully know that you are not obliged to renew and that you can continue your existing tenancy as a "periodic" tenancy by doing precisely nothing.
You may wish to renew to give you a further fixed term of security, however that is entirely up to you.
From the agents view they want you to renew because they can charge the Landlord a renewal fee.
Regarding the agreement itself, several of those clauses look suspiciously like illegal fees, particularly 3.93.  If so they would still be illegal whatever is written in the agreement, but you are right to be suspicious.

frosch411

anselld said:

Before we start on the new agreement, you hopefully know that you are not obliged to renew and that you can continue your existing tenancy as a "periodic" tenancy by doing precisely nothing.
You may wish to renew to give you a further fixed term of security, however that is entirely up to you.
From the agents view they want you to renew because they can charge the Landlord a renewal fee.
Regarding the agreement itself, several of those clauses look suspiciously like illegal fees, particularly 3.93.  If so they would still be illegal whatever is written in the agreement, but you are right to be suspicious.

Thank you for responding 🙂

The EA had emailed me in March (when my 12 month fixed TA was about to end) to state that my TA would shortly be moving to a statutory periodic tenancy temporarily (on which I have been since the end of March).
At the beginning of June, they emailed me again to state the landlord would like to renew for another 12 month, at a higher rent.
I spoke to the landlord and managed to agree a reduction in the increase, and then the EA sent the renewal through with the new rent and those clauses.
When I challenged them, they also stated that "ASTs are updated regularly over the years so this is why there may be differences between the AST issued today to the others."

As a tenant, I feel somewhat cornered in that in order to ensure I can stay at my home (moved in in March 2021), I have to give in to terms and agreements because there wouldn't be a problem for the landlord to re-rent to property out easily, but I'd have the hassle and financial impact of finding a new place and then moving.
It was already difficult to find a decent and somewhat affordable property in my chosen area that would also accept pets. The market isn't really tenant friendly which makes me feel that I cannot stirr up too much fuss for fear of losing out (I am aware of changes to renting coming via the renter's reform). At the same time, I want to make sure my basic rights are safeguarded of course.

Maybe other forumites have some more thoughts on my initial post.

Thank you 😊

 

propertyrental

As anselld says, you could simply ignore the renewal invitation and move automatically to a periodic (rolling) tenancy.

The terms would be exactly the same as the previous agreement you signed. Any change in ret, assuming you agree to one, could be agreed entirely separately. Indeed, simply by starting to pay the new rent you've discussed, that would then be legally deemed to be the rent henceforth.

An alternative would be to sign the new TA, and then challenge the illegal charges. See the guidance for tenants:

Tenant Fees Act 2019: guidance for tenants (updated September 2020)

user1977

3.93 would certainly be illegal if they actually tried to charge the fees to you, but the fact it's in the agreement doesn't make it any more or less illegal.

simon_or

Letting is highly regulated. The Letting Agent can put whatever they want in the contract but if any of the clauses are against the law and/or the code of practice that they sign up to (mandatory requirement for LAs to sign up to an ombudsman scheme) then they won't be able to enforce it.

If you intend to sign the TA and this really bothers you, in your place I would put it on email that these clauses are unfair and raise a formal complaint. Mention that if there isn't a satisfactory resolution, you will take it to The Property Ombudsman. Once you raise a formal complaint they will need to address the subject of your complaint and look at it a bit more seriously than copy-pasting something from the internet.

frosch411

propertyrental said:

As anselld says, you could simply ignore the renewal invitation and move automatically to a periodic (rolling) tenancy.

The terms would be exactly the same as the previous agreement you signed. Any change in ret, assuming you agree to one, could be agreed entirely separately. Indeed, simply by starting to pay the new rent you've discussed, that would then be legally deemed to be the rent henceforth.

An alternative would be to sign the new TA, and then challenge the illegal charges. See the guidance for tenants:

Tenant Fees Act 2019: guidance for tenants (updated September 2020)

user1977 said:

3.93 would certainly be illegal if they actually tried to charge the fees to you, but the fact it's in the agreement doesn't make it any more or less illegal.

simon_or said:

Letting is highly regulated. The Letting Agent can put whatever they want in the contract but if any of the clauses are against the law and/or the code of practice that they sign up to (mandatory requirement for LAs to sign up to an ombudsman scheme) then they won't be able to enforce it.

If you intend to sign the TA and this really bothers you, in your place I would put it on email that these clauses are unfair and raise a formal complaint. Mention that if there isn't a satisfactory resolution, you will take it to The Property Ombudsman. Once you raise a formal complaint they will need to address the subject of your complaint and look at it a bit more seriously than copy-pasting something from the internet.

Thank you all for your input
At the moment, I am on a periodic tenancy, but I didn't know that it meant it's the same as the previous agreement.
That is good to know.
I've reassured the landlord on the new rent which has now been paid for the first time, with the DD having been amended (after a year or so, he had asked if I could pay him directly as opposed to sending the rent to the LA).

My worry for now is that the landlord is obviously keen on another 12-month assurance (hence the new agreement; all have been 12-months ones so far) to give him the guarantee of 12 months rent (if I'd decide to move out earlier, I'd be liable to pay as per clauses in the AST). I try to be understanding of his position (he's not a bad guy by all means; don't want to paint too bleak a picture), yet feel as a tenant I have much less freedom or choice to maneuver as no-fault eviction always looms over a tenant's head if the landlord perceives tenant actions as antagonising.

I'll mull over this all a bit more before reaching back out to the LA and the landlord; maybe he's willing to forgo the 12 month contract if it saves him some money, too.

Again, thank you to the community here who always has some great input 

propertyrental

Your fixed term has ended and your contract is now periodic.

It can continue like that for..... ever.

The terms are exactly the same as the terms of the previous/latest tenancy agreement you signed, except that........

by paying the new proposed rent you have legally accepted it, so must continue paying it.

If you and the LL both want the security of a new (12 month? 24? whatever) fixed term, then by all means sign, provided any terms/clauses within it are acceptable to you. Bear in mind you are committed and cannot end the tenancy before the end of the new fixed term.

saajan_12

Honestly, you're overthinking. 

1. You don't have to sign a new contract, you can stay periodic or suggest to the LL that you simply sign a 1 page addendum to the old contract saying all terms continue but new fixed term from xx/xx/xxxx to yy/yy/yyyy and rent changed to £z. 

2. Don't worry about the Tenant Fees Act, as anything prohibited by that remains prohibited regardless of whats in the contract, so deal with it if / when they charge it. In any case, only 3.93 really seems relevant to this, the others are about breaches of contract.  

3. The other clauses don't seem all that different, you're liable for costs arising from your breach, provided these are reasonable and proved.