Introduction
It is not always realised that there are different types of tenancy. This generally means that you need to use the correct type of tenancy agreement form for the type of tenancy involved This article will help you select the right type of tenancy agreement for your situation. First we will look at the type of tenancies which exist, as this will affect the type of tenancy agreement you will need to use. We then look at rentals of rooms in a shared house and how this affects things. We then go on to consider various other practical issues such as amending tenancy agreement terms and how to complete your tenancy agreement form. Note that this article relates only to tenancy agreements and the law in England and Wales UK.
What sort of tenancy do you have?
Most tenancies created today are Assured Shorthold Tenancies (ASTs) but not always. For example, if
- You are renting to a limited company
- You live in the same building (unless you live in a separate flat in a purpose built block of flats) or,
- The rent will be over £25K per annum
the tenancy will be a 'common law' tenancy, and not an AST. If you use a tenancy agreement document designed for an AST, it is not the end of the world - it will not mean that your tenant will not have a proper tenancy or be entitled to live in the property. However some parts of the agreement, document, the parts specific to ASTs, will be invalid, and this is never a good idea.
You should therefore try to find a form of agreement which is designed for your specific type of tenancy. Common law tenancy agreements are not as easy to find as AST agreement forms, but they are available if you look for them
Is your tenant renting the whole property or just a room?
Where tenants are sharing, most often they will all sign the same tenancy agreement document. This is the best way to do things if the tenants are all friends. However this may not be the best solution if you are letting to people who do not know each other and who may want to leave the property at different times. Here it may be better to simply give a tenancy agreement for their individual room, and include with this shared use of the rest of the property. If you decide to do this, you should use a tenancy agreement document which reflects this (they are often described as an agreement for a room in a shared house where the landlord is not resident). This type of agreement is often used for houses in multiple occupation (HMOs). Tenancy agreements for rooms in a shared house are available but you may need to hunt for them.
Is there anything unusual about the property or the letting?
Most tenancy agreements include standard clauses. Some are better than others, but all of them should include things like clauses prohibiting damage to the property, subletting, inappropriate use of the property etc. However your tenancy may have something unusual. For example you may want to keep one of the rooms out of the letting so you can use it to store your own possessions. There may be a right of way over part of the garden, or you may want to allow access for a gardener. In this case the standard tenancy agreement forms in the shops may not be suitable for you. You could try changing it yourself, but this is generally inadvisable. Drafting tenancy agreements is a skilled task, and you may find that instead of protecting yourself you have, by the way you have written the clause, actually made it invalid, leaving you without any protection at all. The best thing to do is to instruct a specialist solicitor to adapt an agreement for your use. This will cost you more that just using a standard agreement, but at least the agreement will do what you want (assuming this is something permitted by law).
Other tips and traps
When buying a tenancy agreement, form make sure it is fairly recent. Tenancy law does not stay still, and clauses which were perfectly valid 10 years ago, may now be invalid, for example under the Unfair Terms in Consumer Contracts Regulations. Don't try to 'bolster up' what think are weak clauses to make them more favourable to you. The clauses will have been drafted that way for a reason. If you change them you will probably invalidate them (e.g. under the unfair terms regulations). For example don't change clauses prohibiting pets, by taking out any wording providing for the tenant to be entitled to request leave to have a pet, and saying that the request will not be unreasonably withheld. This wording is essential. If you can find one, try to use a 'plain English' style tenancy agreement. This will be much easier for both you and your tenant to understand, and remember - if your tenant can understand the agreement, he is far more likely to read it and do what it says!
Some practical guidance
Be careful when completing your tenancy agreement. Remember it is a legal document. Make sure you get the names of the parties right and the address of the property. If you go to court to evict the tenant, you do not want the bailiff going to the property next door! You need two copies of the tenancy agreement. Your tenant should have one signed by you and you should have one signed by your tenant, however it is common practice for both landlords and tenants to sign both. If the agreement is signed before the date the tenant is due to go in, it should be signed as a deed - this means that the signatures should be witnessed by someone independent.
Finally
Once the agreement is signed, make sure you keep your copy of the tenancy agreement safe. If you ever need to take your tenant to court, you will need it!
