Clauses referencing management of guests in AST

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    Clauses referencing management of guests in AST

    I have a clause in my AST that states "Not to receive any guests for more than fourteen nights in a six-month period without the prior written consent of the Landlord, such consent not to be unreasonably withheld". My property is an apartment that does not allow holiday rentals in the headlease, and is located at a holiday destination. The clause is designed to prevent tenants from inviting people to stay for extended periods without any end date. I also find tenants invite people to stay when they themselves are not there, which concerns me. Can anyone offer any advice as to whether this clause could be considered 'unfair' or suggest any suitable alternatives? Thank you.

    #2
    I would say that if you want to prohibit specific activities, then you should have specific clauses addressing those activities.

    As written it appears to be an unreasonable restriction on what the tenant can do with their property.

    Why should they need to ask the LL before they have a friend to stay for the weekend.

    And on further consideration it would seem they also need LL permission for a dinner party, or even a friend dropping in for a drink or a chat.

    Comment


      #3
      MdeB the OP says he's got this in his TA "Not to receive any guests for more than fourteen nights in a six-month period without the prior written consent of the Landlord, such consent not to be unreasonably withheld".

      I would be concerned if the T had guests over when they were not there. This might affect the insurance.

      Comment


        #4
        How do you count the nights ? Can you see the front door or do you have a web cam ?
        Better just to say no subletting I would have thought, it does seem unfair to restrict tenant's guests.

        Comment


          #5
          Can anyone offer any advice as to whether this clause could be considered 'unfair' or suggest any suitable alternatives?

          If there were no restriction on holiday letting in your lease I would certainly consider the restriction uneasonable. I am not sure it amounts to an unfair term under consumer legislation, but under landlord and tenant law any attempt to enforce it may be considered a derogation from grant as it prevents the tenant from using the property in a way he would expect to be able to use it.

          However, anyone letting a leasehold property is entitled to impose on any sub-tenant any restriction contained in his long lease. That is because any breach of the restriction by the sub-tenant renders the leaseholder liable to action for breach of covenant by the head landlord.

          The way to deal with this is to impose in the tenancy agreement a restriction in the same terms as set out in the long lease. For good measure you can add at the end in brackets: This restriction is imposed by the landlord's lease or words to like effect. Given the somewhat unusual nature of the restriction, I think it ought to be pointed out to any prospective tenant at the very outset, that is before any inspection.

          More generally, a counsel of perfection is to have the tenancy agreement of a leasehold property drawn up by a landlord and tenant specialist conveyancer. Failing that, as a minimum, the tenancy agreement should require the tenant to comply with any "regulations" contained in the long lease, setting them out in full in a schedule or attaching a copy.

          Comment


            #6
            Originally posted by RedDragon5 View Post
            I also find tenants invite people to stay when they themselves are not there, which concerns me.
            As long as the people aren't paying to stay there, that's not a holiday rental.
            That shouldn't be a concern, that's actually quite sensible.

            Having someone stay as a guest for a month isn't a holiday rental either, unless they're paying (and possibly not even then if they're not actually on holiday).

            If the head lease prohibits the use of the property for holiday rental, why not reflect that prohibition in the tenancy agreement?
            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


              #7
              If you thought the clause unfair you presumably wouldn't have purchased it
              I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

              Comment


                #8
                Originally posted by theartfullodger View Post
                If you thought the clause unfair you presumably wouldn't have purchased it
                That presupposes that RedDragon5 is one of very small minority of potential purchasers of leasehold properties who gets beyond page 2 of the lease. If the provision was not flagged up by his conveyancer it should have been.

                Comment


                  #9
                  OK, let me frame it a different way. I have a situation whereby a tenancy has just begun. The single tenant is working between their home property some 200 miles away, and my property, and so lead me to believe that they would be switching between properties as needed (they are classed as a key worker in this current crisis). Within 3 days I find the tenant's son and partner staying there, allegedly because they are between two local tenancies, and didn't have anywhere to go to fill the gap of about a week. I have reports from neighbours that it appears they have settled in and intend to stay longer because they can't view properties to rent currently. This conflicts with the original story about being between tenancies. Their presence means the tenant is excluding themselves from using the property because households cannot mix, and so can never be there while they are in residence. Besides the clause regarding guests staying no longer than 14 nights in a six-month period, I also have a clause in my tenancy agreement that states "Not to assign, or sublet, part with possession of the Property, or let any other person live at the Property". Now, if the story about being between tenancies were true, then they should have somewhere to go to (and left by now), but if it's not true and they don't have anywhere else to go to, then they are effectively now living there, aren't they? Hasn't my tenant also technically parted with possession with the Property? I have a strong suspicion that I have been spun a yarn about them being between tenancies, and they are really there for an extended lockdown holiday. If they do have another permanent address somewhere in the UK then they should be there because of lockdown, but that's more of a current legislative matter, which will be my final stand if I have to use it, however I'm interested in testing the tenancy agreement position first. Any further advice much appreciated.

                  Comment


                    #10
                    That's an entirely different set of circumstances than the original post.
                    Why didn't you ask the question that you wanted an answer to, otherwise we're just wasting our time with hypotheticals?

                    First of all, you have a basic problem with your AST.
                    You can't grant an Assured Tenancy (and therefore an AST) if it's not the tenant's only or principle home, and this isn't, even before the "guests" moved in.
                    Which usually causes a number of issues, because most tenancy agreements are designed to be supported by the Assured Tenancy framework and therefore don't cover things that are matters of law, because it would be redundant.
                    But outside that framework, this usually means there are gaps.

                    There is obviously an agreement there, so let's consider that.
                    The tenant is in breach of the not letting anyone else live there / part with possession term.
                    You might struggle with the receiving guests element, because the tenant isn't obviously receiving them.

                    So what does the tenancy agreement say about what you can do in a breach or when notice can be served?

                    Is it not a temporary issue, people can now view properties (that only just happened) and, being reasonable, this situation is unprecedented and people are trying to be safe.
                    If I had two properties, was a key worker and therefore out in the plague, I might want my partner and son to use one of them while I used the other.

                    And why would you object?
                    They're clearly not on holiday, so your lease is safe.
                    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                    Comment


                      #11
                      Thank you, but that leads to a question related to your first point about not being able to use an AST in these circumstances. If the headlease says subletting can only be done with an AST then does that mean I can only let my property to someone for whom this would be their principal home?
                      To the question of what the TA says about breach and notice, these are the relevant clauses:
                      "The Landlord shall permit the Tenant(s) to have quiet enjoyment of the Property without interruption by the Landlord or his Agent, however this does not preclude the Landlord from taking action through the courts should the Tenant(s) fail to pay the rent due or be in breach of the Tenancy Agreement"
                      "Before the Landlord can end this tenancy, he shall serve any notice(s) on the Tenant(s) in accordance with the provisions of the Housing Acts. Such notice(s) shall be sufficiently served if served at the last known address of the Tenant(s) in accordance with section 196 of the Law of Property Act 1925 (see note 5)"

                      Comment


                        #12
                        Originally posted by RedDragon5 View Post
                        If the headlease says subletting can only be done with an AST then does that mean I can only let my property to someone for whom this would be their principal home?
                        Yes.
                        However, in reality, no one is likely to raise an objection (but if they did you would be in breach).
                        The Landlord shall permit the Tenant(s) to have quiet enjoyment of the Property without interruption by the Landlord or his Agent, however this does not preclude the Landlord from taking action through the courts should the Tenant(s) fail to pay the rent due or be in breach of the Tenancy Agreement"
                        "Before the Landlord can end this tenancy, he shall serve any notice(s) on the Tenant(s) in accordance with the provisions of the Housing Acts. Such notice(s) shall be sufficiently served if served at the last known address of the Tenant(s) in accordance with section 196 of the Law of Property Act 1925 (see note 5)"
                        Neither of those is particularly helpful.

                        You'd probably need professional advice if you want to use the tenant's breach to repossess.

                        However, based on what you've said, I don't think you've got a problem at the moment.


                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #13
                          Thanks again. Are you able to give me an example of clauses that are more robust in this regard? The clauses I have are from an agreement that was originally constructed by a letting agent.

                          Comment


                            #14
                            Fire agent. Select new agent based on their AST
                            I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                            Comment


                              #15
                              I think that trying to control the tenants behaviour this way through such a tenancy clause is a waste of time. By all means have something to that effect in there so that the tenant knows what's expected, but if you find they're breaching the term just use s21 to evict them rather than wondering how you can utilise that clause.

                              Comment

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