Unfair Terms In a Tenancy Agreement

Unfair Terms in Consumer Contracts Regulations 1999:

The Unfair Terms in Consumer Contracts Regulations 1999 (The Regulations) provide protection to Tenants with regard to the terms of the tenancy agreement. The Regulations state that any terms deemed to be unfair will be held to be unenforceable as against the Tenant.

Unfair Terms:

In order for the terms of the tenancy agreement to be deemed fair and therefore to meet the requirements as set out by the Regulations, the following must be adhered to:

1. The terms of the contract must be written in a plain and intelligible language;
2. The terms of the contract must be regarded as fair in terms of a fairness test; and
3. The parties to the contract must have concluded the agreement in good faith.

Examples:

Some examples of unfair terms include the following:

• Terms whereby the Tenant is to pay for repairs which the Landlord is legally required to repair;
• Terms allowing the Landlord to obtain possession of the property without first obtaining a court order; and
• Terms allowing the Landlord to enter the property during the tenancy without prior notice and/or permission.

Effect of Unfair Terms:

Where the Tenant feels that there are terms of the tenancy agreement that are unfair, the Tenant may approach the courts to obtain an order to such effect. This will result in the said terms being declared invalid and unenforceable. However, this does not affect the remaining terms of the tenancy agreement, which will remain valid and in force.

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