Section 2 - During a tenancy
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Rights and Responsibilities
1. What are a tenant's typical rights and responsibilities under a tenancy agreement?
Broadly speaking, a tenant is free to do what they want within the area that is leased to them, as long as they comply with their obligations in the tenancy agreement. The main obligations imposed on tenants are summarised in Section 1 – Before a tenancy and will typically relate to the tenant’s use of the property, any alterations that they wish to make and their general behaviour in and around the property.
Under many tenancy agreements, the landlord will also grant the tenant additional rights to do certain things in areas which are not being leased to the tenant. These may include, for example, rights to use shared kitchens, bathrooms, toilets and balconies. If the AST does not specifically grant such rights, the tenant will not have them. You should therefore make sure that they are specifically negotiated.
2. What are a landlord's typical rights and responsibilities under a tenancy agreement?
Landlords under an AST will often be obliged to:
- provide the tenant with suitable means of access to and exit from the property;
- insure the property and the items which are owned by the landlord (but not the tenant’s possessions) against loss or damage by certain insured risks (e.g. flooding or fire);
- make good any damage caused by those insured risks (unless this is caused by the tenant);
- allow the tenant quiet enjoyment of the property;
NB: This does not mean that the tenant is entitled to peace and quiet. Instead, it means that the landlord cannot interfere with the tenant’s enjoyment of the property, for example by regularly entering the property or preventing the tenant from accessing the property;
- keep in repair:
- the structure and exterior of the property (including the drains, external pipes, gutters and external windows);
- the installations in the property for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences);
- the installations in the property for space heating and heating water; and
- the cooker, washing machine, tumble dryer, fridge, freezer and dishwasher (if these appliances are at the property and provided by the landlord).
If any of these obligations are not included, the tenant should consider asking for them to be included.
The landlord may also be under statutory obligations in relation to repair, as follows:
- if the AST is for a term of less than seven years, the landlord is obliged under the Landlord and Tenant Act 1985 to keep in repair the structure, exterior and installations for the supply of essential services (for example, the boiler);
- under the Homes (Fitness for Human Habitation) Act 2018, the landlord of a property in England must ensure that the property is fit for human habitation at all times – this may extend beyond mere repairs and include improvements (e.g. if there is damp, mould or cold resulting from a lack of damp proof coursing in a property or single pane windows);
- under the Defective Property Act 1972, the landlord must take reasonable care to keep the tenant reasonably safe from personal injury or damage caused by defects which have arisen due to the landlord’s failure to maintain and repair the property.
3. How can a tenant enforce their rights and the landlord's obligations under a tenancy agreement?
If a tenant has a certain right under a tenancy agreement (e.g. to use the shared areas) and the landlord prevents the tenant from using that right, then the landlord is in breach of the tenancy agreement. The landlord is also in breach if it fails to comply with its obligations (e.g. in relation to repair). However, a tenant will not usually have the right to terminate a tenancy agreement due to the landlord’s breach. The only remedy available to them is normally to sue the landlord for the breach of the AST. If the court agree that the landlord has breached the agreement, the remedies are:
- Damages – This remedy would be a sum to compensate the tenant for any loss it has suffered, which will be calculated to put them back in the position they would have been in if the contract had been performed by the landlord properly. For example, if the landlord’s breach causes a leak which means that the tenant’s belongings are damaged, the court may award damages representing the amount that it would cost to repair or replace those belongings.
- Specific Performance – This remedy would be appropriate if the tenant wants to force the landlord to do something that it is obliged to do. For example, if the landlord is obliged under the AST to repair the windows but is refusing to do so, the court may make an order for specific performance. This court order would say that the landlord has to carry out those works.
- Injunction – This remedy would be appropriate if the tenant wants to stop the landlord from doing something. For example, if the landlord is entering the property in breach of the agreement, the court may award an injunction which orders the landlord to stop entering.
Please note that all of the above remedies would involve making an application to court, which is a costly and time consuming process. We would therefore always recommend attempting to speak with the landlord first and trying to reach a satisfactory resolution, with court being an absolute last resort.
4. How can a landlord enforce their rights and the tenant's obligations under a tenancy agreement?
The landlord will usually be granted various rights under a tenancy agreement, including rights:
- to enter the property on giving a certain amount of notice in order to inspect the condition and state of repair of the property, carry out the landlord’s obligations, carry out repairs or alterations to any neighbouring property owned by the landlord, take gas / electricity / water meter readings, inspect the property for the purpose of preparing an EPC, for any purpose mentioned in the AST, and to show prospective tenants around the property;
- to retain a set of keys to the property; and
- to display a “for sale” or “to let” sign on the property in the last few months of the Tenancy.
Similarly, the tenant will generally have several obligations under a tenancy agreement, including in relation to repairs and use. These are set out in more detail in Section 1 – Before a tenancy.
If the tenant prevents the landlord from exercising its rights or the tenant fails to comply with its obligations, then the tenant is in breach and the AST will usually allow the landlord to “forfeit” the AST. This will mean that the AST comes to an end and the tenant must leave the property.
If the tenant’s breach has caused the landlord loss, the landlord could also (in addition to or instead of forfeiture) sue for damages. It could also instead of forfeiture (if appropriate) seek an order for specific performance (i.e. a court order forcing the tenant to comply) or an injunction (i.e. a court order stopping the tenant from doing something).
5. How should a tenant ask their landlord to comply with their obligations and what should a tenant do if the landlord rejects their request?
The landlord under a tenancy agreement will generally have several obligations, most notably relating to repairing the exterior and structure of the building in which the property is contained.
If repairs are required, tenants should first approach their landlord, explain the repairs that are required and ask the landlord to carry out those repairs.
If the landlord refuses to carry out the repairs, the tenant should consider writing a letter to the landlord (see below) which sets out tenant’s rights under the AST.
If notice is required to be given to the landlord in relation to a request for repairs, the tenant must read the tenancy agreement carefully to see what the notice requirements are. The tenancy agreement will usually specify an address on which notice must be served, the methods of service which are permitted (e.g. by hand, by first class post or by recorded delivery service) and when notice will be deemed to have been served (e.g. two working days after the letter was posted). In particular, please note that some tenancy agreements will prohibit notice from being given by fax or email.
As an alternative or in addition to asking the landlord to carry out the repairs, your client can ask the council’s environmental health department to inspect their home if it is in an unsafe or poor condition – this is particularly relevant if the landlord is potentially breaching the Homes (Fitness for Human Habitation) Act 2018 (e.g. where there is damp, mould or cold resulting from a lack of damp proof coursing in a property or single pane windows). If the council assess the property in this case, they can serve the landlord with an improvement notice or an emergency remedial action notice, requiring the landlord to carry out the repairs. If the council do this, the landlord is not then allowed to evict the tenant (i.e. a ‘revenge eviction’) under section 21 of the Housing Act for the next six months.
As a last resort, the tenant can of course (if the landlord is in breach) take the landlord to court for their breach. This is, however, an expensive route and there is no guarantee of success.
6. What are the options where the tenant (or other tenants in the property) are engaging in anti-social behaviour?
If a tenant is engaging in anti-social behaviour, they will usually be breaching one or more of the clauses of their AST. For example, they might be obliged not to cause an inconvenience or nuisance to the landlord or other tenants. In such cases, the landlord could technically forfeit the AST and evict the tenants, or could seek an injunction from the court stopping the tenants from acting in that way.
7. What are a landlord's obligations in relation to health and safety?
Landlords must install:
- a smoke alarm on each storey of the property that is used wholly or partly as living accommodation; and
- a carbon monoxide alarm in any room that is used wholly or partly as living accommodation and contains a solid fuel burning combustion appliance.
The Electrical Safety Regulations 2020 apply to ASTs and require private landlords to ensure that the electrical safety standards in the 2018 edition of the IET wiring regulations are met. These standards relate to checking fixed electrical parts, such as the wiring, plug sockets, light fittings and fuse box. They do not relate to appliances that are not fixed, such as cookers, fridges and televisions.
The Gas Safety (Installation and Use) Regulations 1998 also apply to ASTs and make landlords responsible for maintaining and repairing flues, appliances and pipework by a Gas Safe registered engineer. They must also ensure a gas safety check is carried out within 12 months of the installation of a new appliance or flue and annually thereafter by a Gas Safe registered engineer.
Rights and Responsibilities
8. To what extent can a tenancy agreement be varied or amended after being entered into?
It is possible for a tenancy agreement to be varied after it has been entered into by both parties, provided that both parties agree to the amendment / variation being made. For example, if an AST restricts the tenant from using the property for business purposes, but due to COVID the tenant now wants to operate a business from the property, the landlord and tenant could agree to vary the clause.
While a lease for 3 years or less can be varied verbally, we would always recommend putting the variation in writing by way of deed to ensure that there is no scope for dispute further down the line.
9. To what extent can a landlord require their tenant to pay a service charge? Are there any rules governing how such service charges should be calculated and charged?
Some tenancy agreements will contain service charge provisions. These will generally state that the landlord is obliged to provide certain services to the tenant (e.g. the repair and maintenance of lifts and staircases, the provision of heating and air conditioning, etc.) and in return for these services the tenant will pay the landlord a certain proportion of the cost of those services. The tenancy agreement may specify a percentage here (usually based on surface area) or may simply say a ‘fair proportion’.
You should be careful to ensure that the landlord can only recover costs from the tenant relating to ‘repairs’ rather than ‘improvements’. Improvements to the premises (i.e. where items are upgraded rather than merely being returned to their original state) are often more expensive and can therefore result in the tenant being asked to pay much more than expected at the start of the tenancy.
If there is no express provisions in the tenancy agreement that requires the landlord to provide services and the tenant to pay a service charge, there is no obligation on the landlord to provide those services or for the tenant to pay for them. However, there may be other provisions that entitle the landlord to reclaim its costs of providing “common items”. If the AST contains this provision, you should make sure that there is an equivalent obligation on the landlord to provide those items.
Support for Tenants during the Tenancy
10. What support is available to disabled tenants from local authorities?
Disabled tenants (or their landlords) can apply for a Disabled Facilities Grant from the council if they need to make changes to the property. Such changes may include widening doors, installing ramps, improving access to rooms and facilities, providing a heating system, and adapting heating or lighting controls. The amount of the grant will not affect any benefits that are received by the tenant, but will be determined by a calculation based on household income and savings. The maximum amount of grant available is currently £30,000 in England, £36,000 in Wales and £25,000 in Northern Ireland. If the client has care needs, they can also seek assistance from social services.