Hints on drafting

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    Hints on drafting

    Hints on drafting short term residential tenancy agreements

    If you have decided to do your own thing or change an agreement you have borrowed (a risky thing to do) consider the following:

    The length of term is best expressed as follows or to the like effect: “the period commencing on and including [ ] and ending on and including [ ]”. That avoids any doubt about both the start and end dates.

    Avoid having the tenancy end at some time of the day as it may lead to confusion about what day any statutory periodic tenant (SPT) begins.

    If you really want the tenant to hand over the keys on the last day have a separate clause requiring that, but not that possession must be given before the end of the day.

    Make sure that the length of term is such that, if the tenancy is fixed term and is followed by a periodic tenancy, the first day of the periodic tenancy will be a rent day. That will ensure that the rent periods and tenancy periods coincide.

    If granting a fixed term tenancy where all the rent is payable up front any SPT which follows it will be a periodic tenancy the periods of which are equal to the fixed term - which neither party will probably want. Avoid that by, for example, granting a tenancy for seven months with the first six months’ rent payable on commencement and the last month payable on the first day of the last month.

    If the tenancy is fixed term, avoid providing for what notice must be given after the fixed term ends. It is of no use anyway if the fixed term is followed by an SPT and causes confusion and disputes.

    If the tenancy is fixed term, avoid requiring the tenant to give notice to end it or give notice of an intention to leave – neither is of any use. If you want to pin the tenant down to a minimum period and require notice you have to grant a tenancy for the minimum period which is expressed in some way to continue as periodic. The drafting is best left to an expert.

    Do not put a provision in which says the tenancy continues if some condition is fulfilled or not fulfilled. It may make the whole grant void.

    Do not put in anything about what is to happen if there is a surrender. It is quite unnecessary as a landlord can control the terms of a surrender. You may give the impression that the tenant has the right to surrender, or, if you get the drafting wrong, actually grant the tenant a right to break.

    Make sure that the terms of your property insurance dovetail with the agreement, especially with regard to any clause in the insurance policy concerning the number of days the property is left vacant.

    Unless considered sensitive, supply the tenant with a copy of the property insurance policy or sufficient extract and impose an obligation not to do anything which may make it void or prejudice a claim.

    Ensure that the tenant’s repairing obligations are qualified so as not to extend to making good any damage caused by an insured risk unless the insurance moneys are withheld because of any act or omission of the tenant or his invitees.

    Do not include an obligation on the landlord to insure the property. It may seem harmless because it is something a landlord will do anyway, but if by some mischance the property is not insured and there is damage caused by the tenant, an agreement to insure may prevent any claim being made against the tenant.

    If the property is freehold and subject to restrictive covenants, supply a copy to the tenant and impose an obligation not to do anything which would be a breach. (If the property is leasehold it is unwise to draw up your own tenancy agreement.)

    If you are taking a deposit be sure to say what it can be used for and when.

    If you have an inventory of contents and/or a schedule of condition or a combination of both make sure it/they is/are properly hooked up to the agreement. If the inventory/schedule is not agreed before the agreement is signed (by much the preferred option) any clause which says it is to be agreed later must have a provision for any dispute to be resolved by a third party. See these threads:

    https://forums.landlordzone.co.uk/fo...s-of-condition
    https://forums.landlordzone.co.uk/fo...after-check-in
    https://forums.landlordzone.co.uk/fo...ning-inventory
    https://forums.landlordzone.co.uk/fo...-and-inventory

    Do not make unnecessary statements.

    (The above is not intended to be exhaustive. If anything else occurs to me I’ll add it to the list.)

    *

    It is all too easy when you have drafted something to read it through and think it is fine. Thinking that what you have written and what you meant to write are the same thing is a problem which can afflict even the best draftsman. If you have drawn up your own agreement run it past a friend or two to see if they think it is all clear and hangs together properly.

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