There are many regulations regulating how landlords should behave towards their tenants.

But what about tenants? Are there general rules about how they should behave during their tenancy?

The answer is ‘yes’. It’s known as the duty of tenants to act in a ‘tenant-like manner’.

So what does acting in a ‘tenant-like manner’ mean?

It first appeared in a judgement from Lord Denning in a case called Warren v. Keen from 1954.

This was a case where a landlord tried to claim compensation from his tenant for money he had paid for repairs to the property. Claiming that this was due to him as it was the tenant’s obligation to keep the property in a ‘tenant like manner’.

The court held that the particular defects claimed were actually down to ‘fair wear and tear’ and were therefore payable by the landlord.

The judgement contained this famous quote from Lord Denning as to what ‘tenant-like manner’ actually meant:

The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, where necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house, wilfully or negligently; and he must see his family and guests do not damage it: and if they do, he must repair it.

Going on to say that

if the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, the tenant is not liable to repair it.

What is tenant like behavour today?

Warren v. Keen is an old case (1954), and the way we live has changed somewhat. So, for example, few rented properties today will have open fires which require tenants to clean the chimney.

Here is a list of things which I think would probably come within the definition today:

• Cleaning windows
• Changing light bulbs
• Dealing with sink and toilet blockages
• Keeping the grass cut if there is a garden and sweeping up fallen leaves
• Preventing gutters from becoming blocked
• Preventing condensation by
  • Keeping the property at a suitable temperature and
  • Allowing ventilation, eg by keeping trickle vents open in double-glazed windows or leaving windows open a crack at the top
• Wiping excess moisture from windows due to condensation from time to time

If you have any other suggestions, put them in the comments, and (if I agree) I will add them to the list.

Lord Dennings’s judgement also stated that tenants should not allow their family and/or guests to damage the property and confirmed that if they do, the tenant is responsible for dealing with any repairs.

Duties of tenants in legislation

The concept that tenants must ‘do their bit’ to keep the property in good condition and must not just expect landlords to do everything is embedded in our law and is reflected in legislation.

For example, the statutory repairing obligations in s11 of the Landlord and Tenant Act 1985 state in (2)(a) that a landlord will not be required

to carry out works or repairs for which the lessee is liable by virtue of his duty to use the premises in a tenant-like manner,

Likewise, the fitness for human habitation rules in section 9A provides at (2) that:

The implied covenant is not to be taken as requiring the lessor—
(a) to carry out works or repairs for which the lessee is liable by virtue of—
(i) the duty of the lessee to use the premises in a tenant-like manner,

In Wales, the Renting Homes (Wales) Act 2016 s96 provides that the obligations on the landlord set out in section 91:

(1) …does not impose any liability on the landlord if the dwelling is unfit for human habitation wholly or mainly because of an act or omission (including an act or omission amounting to lack of care) of the contract-holder or a permitted occupier of the dwelling.
(2) The landlord is not obliged by section 92(1) or (2) to carry out works or repairs if the disrepair, or the failure of a service installation to be in working order, is wholly or mainly attributable to lack of care by the contract-holder or a permitted occupier of the dwelling.
(3) “Lack of care” means a failure to take proper care—
(a) of the dwelling, or
(b) if the dwelling forms part only of a building, of the common parts that the contract-holder is entitled to use under the occupation contract.
(4) This section is a fundamental provision which is incorporated as a term of all secure contracts, all periodic standard contracts, and all fixed term standard contracts made for a term of less than seven years.

Duties of HMO tenants.

Then, there are the HMO management regulations, which impose additional obligations on HMO landlords. However, these, too, require tenants to make their contribution, stating in s10 that:

10. Every occupier of the HMO must—
(a) conduct himself in a way that will not hinder or frustrate the manager in the performance of his duties;
(b) allow the manager, for any purpose connected with the carrying out of any duty imposed on him by these Regulations, at all reasonable times to enter any living accommodation or other place occupied by that person;
(c) provide the manager, at his request, with any such information as he may reasonably require for the purpose of carrying out any such duty;
(d) take reasonable care to avoid causing damage to anything which the manager is under a duty to supply, maintain or repair under these Regulations;
(e) store and dispose of litter in accordance with the arrangements made by the manager under regulation 9; and
(f) comply with the reasonable instructions of the manager in respect of any means of escape from fire, the prevention of fire and the use of fire equipment.

What about ‘fair wear and tear’?

Fair wear and tear is the term used for the deterioration of the condition of the property, which is just down to the effect of people living in it.

So, if a carpet gets worn down after several years due to being walked on, that is fair wear and tear. The landlord in that case, would be responsible for the replacement cost. However, if the tenants cause it to become exceptionally soiled (perhaps due to pets using it as a toilet), then that would be something they are responsible for dealing with. And which the landlord can charge for from their deposit.

So when a property is found to be damaged in some way and the landlord is contemplating making a deduction for repairs, only those caused by a breach of the tenants obligation to act in a ‘tenant-like manner’ will be chargeable.  Damage due to fair wear and tear is down to the landlord.

And finally

It’s important to remember that tenants, as well as landlords, have obligations regarding the condition of their property.

Landlords are obliged to keep the property in repair and fit for human habitation. Under regulations yet to be made under the Renters Rights Bill, they will also be required to comply with the new ‘decent homes standards’.

However, these obligations are also subject to tenants’ behaving responsibly and not causing damage to the property.

We have a paragraph in our tenancy agreements informing tenants of this legal obligation, so there can be no misunderstanding.

The post The Tenant’s obligation to act in a ‘tenant like manner’ during their tenancy appeared first on The Landlord Law Blog.

Many landlords are extremely angry that their right to a no-fault eviction is due to end when the Renters Rights Bill comes into force.

No doubt, they will be looking to create an occupation type where they will have similar rights.

Here are four options they may be considering:

1. Utilising section 30 and creating 7 year + tenancies

As pointed out by Justin Bates KC when he gave evidence to the committee stage of the bill, section 30 of the bill currently provides that the bill provisions will not apply to a fixed term tenancy of more than seven years.

As he pointed out, it would be easy for a landlord to grant a fixed term of seven years and one day with a right to terminate on two months’ notice.

This type of tenancy would be extremely prejudicial to tenants as the various repairing and fitness rules do not apply to tenancies with a term of seven years or more.

However, as this issue was pointed out to the committee, it is highly likely that section 30 will be amended or deleted. Indeed, Justin Bates informed the committee, during his evidence, how this could be done. So, this option is unlikely to remain available for landlords.

2. Creating a common law tenancy

This was a suggestion put forward by one of our Landlord Law members on our forum.

The member is a student landlord, and he suggested renting a property to the student’s parents. As they would not be living at the property, it would be a common law tenancy – as section 1 of the Housing Act 1988 limits the application of the act for tenancies where

the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home

The suggestion was that the students would be allowed by their parents to live in the property as permitted occupiers.

At the moment it looks as if this could be an option for student landlords.

3. ‘Proper’ residential licenses

A tenancy is the default occupation type in England.  For this not to apply, there needs to be something that takes the occupation outside the definition of a tenancy.

The leading case here is the House of Lords decision in the case of Street v. Mountford. This was about whether Mrs Mountford had a tenancy or a residential license.  Their lordships held that a tenancy would, in most cases, not be created if the occupier did not have ‘exclusive possession’.

One common way of creating a residential tenancy where the occupier does not have ‘exclusive possession’ is for the landlord to contract to provide services.  If these require the landlord or their employees to regularly enter the property.

These could be:

• Cleaning services
• Providing and changing towels and bed linen
• Having a concierge service which would receive deliveries on behalf of the occupier and put them in the property (normally, this would be a flat)
• This could include putting away groceries into the kitchen larder, fridge and freezer
• Entering to carry out basic services such as changing lightbulbs when the occupiers are out

However, for a genuine residential license to be created, the services must actually be provided. This sort of thing will be expensive for the landlord to provide.  So, this type of ‘serviced accommodation’ will normally be at the higher end of the market.

It is possible, though, that regulations made after the bill comes into force will provide for residential licenses to be regulated, as has happened in Wales.  So landlords considering providing serviced accommodation should watch out for this.

4. Allowing tenants to sublet to lodgers

Lodgers are excluded from protection under the Protection from Eviction Act 1977 and so landlords do not need to obtain a Court order for Possession. Provided the conditions in section 3A subsections (3) and (3) of the act apply.

These are basically that:

• The landlord or a member of the landlord’s family occupied the property as their only or principal home immediately before the license was granted, and
• The occupier shares accommodation with the landlord or licensee. Note that this must be ‘proper’ living accommodation, such as a shared living room or kitchen, not just staircases, passages, corridors etc.

So, although the tenant would be protected under the act, anyone they sublet to (provided they shared living accommodation with them) would not.

The only problem with this is that it would, in most cases, turn the property into an HMO. If there were more than 5 occupiers, this would be a licensable HMO (or if the property was in an area subject to additional or selective licensing).

So this would only really ‘work’ if there were just two people living at the property, as a property with just two occupiers cannot be an HMO.

This model could, though, be used when a landlord purchases a flat or house for their student child, who is allowed to share it with just one lodger.

If you want to find out more about the law applying to lodgers, see our Lodger Landlord website.

Any other suggestions?

These are all the options that I can think of just now. But do any readers have any other suggestions?

The post Four options for landlords wanting to retain section 21 type eviction rights appeared first on The Landlord Law Blog.