Fair Play muddies the waters

It appears that, like true love, the course of housing law never runs smooth. As if to demonstrate this, the Court of Appeal last year upheld a High Court ruling that Tenancy Agreements are subject to the provisions of the Unfair Terms in Consumer Contracts Regulations 1999.

For many in the world of housing the case of Newham Council –v- Khatun probably passed unnoticed, although it has now resulted in Newham amending its tenancy terms and conditions (Inside Housing, 2 September). But some housing lawyers are now concerned that it has important implications in housing law in particular and the management of housing stock in general. Are such concerns well-founded?

The regulations are intended to ensure fairness in any contractual relationships between a seller or supplier and a consumer. Not, one might think an inappropriate or controversial legal requirement. In consequence of the Court of Appeal ruling, this requirement is now imposed upon the Landlord-Tenant relationship, with seller/supplier now meaning ‘Landlord’, whether local authority, Registered Social Landlord or otherwise, and ‘consumer’ meaning a Tenant or proposed Tenant.

While it might not be considered unreasonable to require fairness in relationships between Landlords and Tenants when seeking to agree a tenancy, it must be conceded that the regulations are weighted in favour of Tenants. They impose a greater burden on the ‘seller/supplier’ Landlord to consider the Tenant’s rights and obligations when drafting and imposing tenancy terms and conditions. But is this contrary to the implicit or stated aims of most Registered Social Landlords or local authorities?

It is true that the Court of Appeal ruled that some 17 terms and conditions within the Landlord’s Tenancy Agreement required amendment in order to comply with the regulations but many of the amendments were intended to clarify particular provisions rather than remove them.

Where provisions were deleted the intent was, quite properly, to bring the agreement into line with well-established legal principles: for example, provisions that required the Tenant to state that they understood the terms and conditions of the tenancy and specific aspects of the agreement are clearly illegitimate impositions.

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