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I'm asking on behalf of a friend. I don't have the contract to copy in relevant clauses.


A landlord proposes to change the rental agreement. The new clause states that when a tenant leaves, they pay rent if the property is unoccupied. This way the landlord does not have a void period.

My inclination is that this is not enforceable, because the former-tenant would be paying for a service that they do not benefit from. Also, this website offering tips to mitigate void periods does not list this tactic, implying that it is at least uncommon.

My questions are:

  • Is this type of clause legal/enforceable?
  • What is this type of clause called? N.B. I found it hard to conduct my own background research, as I don't know what to search for
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    Nobody can change a rental agreement unilaterally; if the tenant agrees to the change, it is enforceable. – Tim Lymington Aug 20 '18 at 9:46
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    @TimLymington if the tenant agrees to cut one of his fingers every month that the property is empty that won't be enforceable. – Greendrake Aug 20 '18 at 10:04
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    Thanks. if anyone can remember any cogent points they made that would make a good answer, the answer box is below. If you would like to discuss tags, Law Meta is the place. If you would like to contribute something useful without bickering, this might be the right place. – jimsug Aug 20 '18 at 12:29
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    Is this a residential or commercial tenancy? What exactly does this clause say (its important, as if its until a specific time, or for a maximum length it is more likely to be enforceable - likewise, if its a commercial tenancy its more likely to be enforceable then a residential tenancy). – davidgo Aug 20 '18 at 21:16
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    Does this cover voids only during a fixed term lease (in which case that is the default rule of law subject to a duty to mitigate), or is it after the expiration of the lease term (in which case that would be very unusual)? – ohwilleke Aug 20 '18 at 23:47
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It seems like an 'unfair' clause because there is an obvious benefit to the landlord and no benefit to the tenant. If it is unfair it is not binding on the tenant. Is there even a time limit on the vacant period?

A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

http://www.legislation.gov.uk/ukpga/2015/15/part/2/enacted

That doesn't mean there is no downside to accepting it in the contract. A landlord who wants this in the contract is a landlord who will pursue it (to some extent) and that will cost the tenant some time and stress if not money. If it came to court, I think the burden will be on the tenant to persuade the court that it is an unfair term.

I have not seen it in ASTs, the government's model AST or the government's list of example unfair terms the government has seen in tenancy agreements.

In the comments, Martin Bonner advises the tenant to try Citizens Advice or see if they can have a 15 minute chat with a lawyer for free. It may be worth calling Shelter https://www.shelter.org.uk/ for free advice too. But to me this clause does not indicate a reasonable landlord-tenant relationship.

What is this type of clause called?

A 'brass neck' clause?

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    Without knowing more details of the lease and the situation it is hard to know if it is unfair to the point of being unenforceable or not. For example, the OP doesn't clearly state that this payment is due for the unexpired portion of a fixed term lease or post-lease termination, and doesn't explain other context issues (e.g. does it apply when the tenant hasn't given notice of termination in an indefinite term lease). Context matters. – ohwilleke Aug 20 '18 at 23:50
  • @ohwilleke fair comment. I had assumed that the context was about the vacant period at the end of the term but that is not clear from the OP at the time of writing. – Lag Aug 21 '18 at 6:37
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Terms in a contract that are not legal or not enforcable are quite capable of causing you trouble and costing you time or money, most likely a generous amount of both.

Your friend shouldn't care one bit about whether these terms would be legal and/or enforcable. If he doesn't like them, then he MUST NOT accept the changed contract. Not if these terms are illegal and unenforceable and of course even less if they are legal and enforceable.

I would write back "I believe that the suggested change in terms is illegal and would be unenforceable. I also believe that the change is deeply unfair towards me and creates a considerable legal risk that I am not willing to accept under any circumstances. I therefore strongly reject your suggested change. "

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