AST's and unfair terms in Consumer Contracts

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  • AST's and unfair terms in Consumer Contracts

    I carried out an inspection of a property yesterday afternoon where the tenant who is on a 12month AST has complained to EH that there is disrepair in the property.I went through the property and only found very minor items that to be honest are having no detremential effect on the tenant so I will not be issuing an enforcement notice.The tenant showed me a copy of the AST which was pretty standard except for one clause which I noted:

    41.5 The landlord has the right to vary the terms and conditions of this agreement at anytime by giving 14 days notice in writing... etc.

    This is similar to the terms that banks,credit card companies and mortgage companies use and in my opinion is an unfair term.I understand that the tenant should have read the terms of the agreement before signing but this was tucked away and could easily have been overlooked by anybody.My question would be that if someone like the OFT decided that it was an unfair term would that also apply to finiancial instutions and if so what redress would there be for landlords and tenants.Or if this person was to complain to the OFT would it be opening a large can of worms.
    Disclaimer:I have over 30 years experience in housing(both social and private) as an EHO and Building Surveyor.I am also a certified expert witness having spent the last 15years working in housing litigation.The advice I give is from experience in working for various Local Authorities and how the law is interpretated.Housing Law is a minefield and is continually being amended if in any doubt you should consult a solicitor or someone of equal legal standing.

  • #2
    My understanding of Unfair Terms in Tenancy Agreements published by the OFT is that they are Guidlelines ONLY and can therefore only be interpreted in a court of Law. Having said that it is likley that a court would follow the Guidlelines set out by the OFT.

    All too often, with AST's the tenant is expected to sign on the dotted line far too quickly and with insufficient time to look at it properly, let alone understand what all the clauses mean!

    With regard to Terms of Business issued Financial institutions, my understanding is that these are governed by far more rules, regulations leglislation and Governing bodies than Tenancy Agremeents ever will be and subsequently credit and financial agreements are virtually watertight ..e.g. giving the consumer sufficient time to throroughly peruse the document and take advice if necessary; cooling off periods; credit licencing; etc etc. etc.

    I doubt very much if a tenant objecting to this unfair term (which IMHO it is in this scenario !! ) would have any effect whatsoever on similar clauses concerning financial agreements.

    My AST is full of potentially unfair terms but as none of them have affected me, or are likely to affect me, I haven't reported them - I can't see the point in upsetting an ptherwise good relationship ..
    Any information or opinion given in this post is based only on my personal experience, what I have learned from this, other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person. E&OE


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