Jungle Property Blog

Tenancy Agreements often include terms such as ‘The tenant shall make good all damage and breakages to the property and its contents that may occur during the term, that are the responsibility of the tenant (with the exception of fair wear and tear and accidental damage by fire).’

The part in question here is the ‘with the exception of…accidental damage by fire‘.

Firstly, the term is taken directly from the Office of Fair Trading guidance on unfair terms in tenancy agreements, now embodied within the Consumer Rights Act 2015.All terms must be “fair” to be enforceable and the fact that the term is shown in the guidance as being “fair” therefore suggests it is enforceable. It may not however be a fair term if “accidental” were removed because by its very nature there must be no negligence.

Going back to the original question, should the term ‘accidental damage by fire ‘ be removed from the Tenancy Agreement?

It makes no sense to remove it. Insurance is a contract for indemnity. If a landlord makes the tenant responsible but do not exclude from the tenant’s responsibility damage by an insured risk, then the insurance company may decline to pay out on the grounds that the primary liability lies with the tenant and only pay up when payment cannot be extracted from the tenant. You could of course make the tenant liable for insurance, but that is unwise in the case of short-term residential lettings. Apart from being risky, there are practical limitations such as insurance may not be available for short periods and the landlord would need to cover void periods.

One final question then… what about replacing ‘accidental damage by fire’ with ‘insurable risk’ as a catchall?

The pitfall of doing this is that you would have to supply full details of the insurance policy with the Tenancy Agreement – If the tenant does not know exactly what’s insured in advance, the term would be unenforceable.

The terms that the Office of Fair Trading suggest are fair (and therefore enforceable) are:

Incorporation of insurance provisions
Details of the landlord’s insurance are provided with this agreement. The tenant shall not do or permit to be done in or about the property any act or thing which may render void or invalidate the insurance of the property or the building against fire or otherwise increase the ordinary premium for the insurance.

Transfer of risk
The tenant shall make good all damage and breakages to the property and its contents that may occur during the term, that are the responsibility of the tenant (with the exception of fair wear and tear and accidental damage by fire).

The question relates to the release of a deposit from the Deposit Protection Service (DPS)…

There is no time limit to wait contained in the Housing Act 2004 once a repayment request has been made so it will be a case of common sense. Clearly you need to give sufficient time for the tenant to respond because if they respond then it will follow the usual procedure (agreement or dispute).

If the tenant fails to respond within a reasonable time (we suggest around 14 days), then they will become absent or un-cooperative.

Absent or un-cooperative tenant

If the tenant is un-cooperative and fails to respond, then the procedures as laid out in Schedule 10, Housing Act 2004 take effect which allows for a single claim to be made.

Are there any pre-requisites for a single claim to be made?

A single claim process may be made if:

•at least 14 days have elapsed since the day on which the tenancy ended;
•the landlord and tenant have not reached an agreement with respect to the amount of deposit claimed; and
•the landlord believes that he is entitled to be paid the amount claimed and that the amount claimed is one of the following:

•unpaid rent or any other sum due under the terms of the tenancy; or
•damage to the premises subject to the tenancy, or
•loss of or damage to property on those premises
and none of the above may include damage caused by fair wear and tear.

If you need more information on the single claims process, contact a lettings specialist such as Jungle Property, details here

Tenancies granted before 1 October 2015

Where a tenancy is granted in England on or before 1 October 2015, Section 21 Housing Act 1988 contains no time limit as to when a section 21 notice may be acted upon once expired. Therefore, once served, a possession order may be obtained any time after it’s expiry unless it has been withdrawn or a new tenancy has been granted since the notice was served. This can be compared with a section 8 notice (normally used for rent arrears) which has a 12 month lifetime before a new one would need serving [section 8(3)(c) Housing Act 1988].

It would be wise for a landlord wishing to act on a notice some time after expiry (for example a year after expiry) to write to the tenant as it might be quite a shock if the first thing they heard was a court letter.

Tenancies granted on or after 1 October 2015 (or all AST’s from 1 October 2018)

For all tenancies granted in England on or after 1 October 2015 including a renewal, section 21 Housing Act 1988 is amended substantially and a new ‘use it or loose it’ provision is introduced.

Where the rent payable is weekly, monthly or two monthly, court proceedings for possession may not be begun after the end of six months from the date on which the notice was given.

Where the rent payable is greater than 2 monthly (such as quarterly, six monthly or annually), proceedings for possession must not be begun after the end of four months from the date given in the notice for expiry (the date possession is required under the notice).

From 1 October 2018, the ‘use it or loose it’ provision will apply to ALL assured shorthold tenancies in England including any that were granted before 1 October 2015 (or went statutory periodic).