Misleading or unfair tenancy terms

A recent tribunal case has highlighted the importance of ensuring that tenancy terms are enforceable and not misleading or unfair.

The case centred on a property in St Andrews where the landlord had asked the letting agent to include a lease term requiring the tenant to vacate the property for a 10 day period in July 2022. This was to enable the landlord’s husband to occupy the property during the British Open golf tournament.

Such a lease term is unenforceable because the Private Residential Tenancy (PRT) regime makes no provision requiring tenants to temporarily vacate a property. A landlord can only require a tenant to vacate a property if a Notice to Leave is issued on one of the eviction grounds set out in the legislation and an eviction order is subsequently granted by the First-tier Tribunal for Scotland (Housing and Property Chamber).

Whilst the letting agent knew that the clause was unenforceable they nevertheless agreed to include it in the tenancy terms.

The tenant raised a tribunal case against the letting agent for breaches of the letting agent code of practice. The tribunal partially found in the tenant’s favour and awarded the tenant compensation of £1400. A full write up on the case can be found here.

Whilst in this case the letting agent was ordered to pay compensation, landlords should also note that in a similar scenario a tenant could instead pursue their landlord for damages resulting from the inclusion in the lease of any unenforceable tenancy terms which are unfair or misleading. Another example of a tenancy term which is unenforceable would be a requirement in a PRT lease for the tenant to give more than 28 days’ notice to end the tenancy.

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