What is "fair" in AST? Provisions seem onerous

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  • What is "fair" in AST? Provisions seem onerous

    I wrote about a week back about leaving let accommodation. Now I'm writing about moving into a let flat. Full disclosure: I'm an American who relocated less than a year ago and am ignorant as to UK law and reg.

    We're being asked to sign an AST that seems unfair. Our comparison is a Letting Centre AST; what we're being told to sign is from the NLA and it seems to hold us responsible for anything that happens in the flat, whether due to our negligence or not. All broken glass, not just what we or our guests may break. We are supposed to keep all pipes, drains, cisterns, etc. in and out of property in good working order AND free of obstruction -- not just simply keep toilets, basins, baths, sinks obstruction-free, but keep all pipes in and out in good repair. Nor are we able to hold the landlord responsible if corroded pipes burst; so flood is our problem even if the fault is bad pipes. We are supposed to follow any regulations the landlord deems fit -- though they are not stipulated, we are agreeing to do whatever he says, whenever he says it. Really. If we leave anything, anything at all, in the flat when vacating, we will owe the landlord one month's rent -- could be a book mistakenly left behind, but no matter, a month's rent and the landlord need not ask us to come pick up the item.

    This doesn't include the various ways the landlord can repossess the property, and court is never mentioned.

    Basic question: would such an AST be enforceable? I've been told no, soundly, all around. Yet I've no idea why we're being pushed into signing something that has no legal standing. And pushed we are -- we have a young child and have given notice to present landlord, put money down, etc. We've got to move. Landlord seems decent, agent has actually been decent (yes!), and everything is great... but for this really aggressive AST. Is it simply the unenforceable standard form I'm being told?

    Thank you for reading.

  • #2
    Generally, T is responsible for most things at a let property. Exceptions:
    A. Anything for which L explicitly accepts responsibility.
    B. Items under s.11 of Landlord and Tenant Act 1985. These are listed under other threads but include mains installations for gas/water/electricity and the building's structure.
    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).


    • #3
      Originally posted by ololon View Post
      would such an AST be enforceable?
      It sounds like many of the terms would be deemed unfair if you ever went to court over them.

      The AST is an agreement between you and LL. If you don't agree to it, you shouldn't sign it. You say that you are being "pushed into signing" but it sounds like it is your circumstances that are doing the pushing, and that's not the LL's fault. LL is not obliged to change his terms in order to get you to sign, and if people walked away rather than signing these crazy agreements then they'd soon go out of fashion.

      Having said all that I know that if the alternative is homelessness, then signing seems like the only sensible thing to do. What I would do is write a letter to the agent explaining your concerns. Then at least if it ever does come to court you have some evidence that you didn't just sign unthinkingly.

      On the other hand, if you do that then it's clear that you've read the contract and still signed it. Which could put you in an even worse situation.

      What is LA/LL's response to your concerns? Perhaps if you threatened not to sign unless clauses are removed, they might listen?



      • #4
        This stuff is as old as the hills. What is deemed to be a potential unfair term is extremely subjective and can only be decided by the courts. The OFT have guidance on this and if you go into their website you will be able to download all 127 pages of it. It gives examples of potential unfair terms in tenancy agreements - plus there are some examples of other unfair terms in OFT607 - Bulletin 20 - when Southend-on-Sea TSO took some well known traders to court such as Countrywide for what were deemed to be unfair and/or onerous contract terms.

        Just because you sign an AST doesn't mean you have prejudiced your rights as the unfair terms guidance still applies. It just depends who wants to verify, invoke or enforce the potential unfair term.
        The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.


        • #5
          Thank you.

          I did inform the agent in writing, who was providing this lease, that I thought the lease bizarre. She insisted on it, though the landlord hadn't seen it at the time of signing.

          I even sent her the lease with embedded comments, asking that she remove or amend the indicated items. She told me, on the phone, that she would change it. At the time of signing, however, she presented the same old lease and said she made all of the changes and forgot to save it. Oops.

          Yes, we could have walked away but no reasonable person will think we could really do that given the circumstance. At least the landlord hadn't seen the thing ahead of time; it wasn't at his insistence, which is what matters most. I do have all my correspondence in writing.

          Thanks again.


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