Dodgy clause in tenancy agreement?

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    #1

    Dodgy clause in tenancy agreement?

    Hi

    I'd be interested in opinions - particularly those of the experts on these boards - on this excerpt from my sister's tenancy agreement:
    4. PROVIDED ALWAYS and it is hereby agreed that if at any time:

    4.1 Any part of the rent shall be in arrears for fifteen days (whether formally demanded or not) or

    4.2 There shall be any breach non performance or non observance of the Tenant's agreements herein contained or

    4.3 The Tenant (being an individual) shall become bankrupt or the subject of an administration order or (being a Company) shall enter into liquidation whether compulsory or voluntary or shall have a Receiver appointed or

    4.4 The property shall be abandoned

    the Landlord may re-enter the property and forfeit the tenancy, which shall thereupon cease and determine but without prejudice to any right of action of the Landlord against the Tenant, which may already have arrived.

    Basically it seems to be saying the landlord can re-enter the property and forfeit the tenancy in any of the circumstances named above, whereas I would have thought a posession order would be required, and even then only after the appropriate notices had been correctly served etc.

    What do you think?

    Jeremy
    Tags: None
    #2
    I've got a few clauses like this in my tenancy agreement, but they are unenforceable as they take away a tenant's legal rights. To re-enter a tenanted property, a landlord must hold a possession order issued by the county court, and if the tenant is present, or there are signs he is still living there, the landlord would need to be equipped with a county court bailiff enforcing an eviction notice.

    P.P.
    Any information given in this post is based on my personal experience as a landlord, what I have learned from this and other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person.

    Comment

      #3
      I can see its totally misleading to say that the landlord can re-enter the property; but many ASTs do; its part of the 'forfeiture clause', warning the tenant if he does not pay rent he stands to loose his home.

      It's rather like an appendix; we have evolved so far that is is of no further use, except as a landmark of the ailimentary canal.

      As P Pilcher says, it's unenforcable. Just don't worry about it.
      All posts in good faith, but do not rely on them

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      Comment

        #4
        Unless it's a commercial lease, in which case it probably IS enforceable. It sounds like an extract from a typical commercial lease to me.

        Comment

          #5
          There is one in my commercial lease, but solicitor still said that I would need a court order to possess.
          All posts in good faith, but do not rely on them

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            #6
            Originally posted by P.Pilcher View Post
            I've got a few clauses like this in my tenancy agreement, but they are unenforceable as they take away a tenant's legal rights. To re-enter a tenanted property, a landlord must hold a possession order issued by the county court, and if the tenant is present, or there are signs he is still living there, the landlord would need to be equipped with a county court bailiff enforcing an eviction notice.

            P.P.
            Clauses like this ARE enforceable unless T ropes in OFT and has clause deleted. Landlords should therefore continue to enforce.
            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
            4. *- Contact info: click on my name (blue-highlight link).

            Comment

              #7
              But if LL's enforced, they would get done by breach of Protection from Eviction Act 1977?
              All posts in good faith, but do not rely on them

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              Comment

                #8
                Originally posted by Bel View Post
                But if LL's enforced, they would get done by breach of Protection from Eviction Act 1977?
                Not if Court upholds clause.
                JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                4. *- Contact info: click on my name (blue-highlight link).

                Comment

                  #9
                  Why might they want to uphold the clause?
                  All posts in good faith, but do not rely on them

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                  Comment

                    #10
                    Originally posted by Bel View Post
                    Why might they want to uphold the clause?
                    Because it's a simple proviso for re-entry.
                    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                    4. *- Contact info: click on my name (blue-highlight link).

                    Comment

                      #11
                      ok..you're being 'technical' ??

                      But you would never advise a client to re-enter without a court order?

                      I take it that re-enter = repossess ??
                      All posts in good faith, but do not rely on them

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