GUIDANCE ON UNFAIR TERMS IN RESIDENTIAL TENANCY AGREEMENTS

EXCLUSIONS OF LIABILITY

Exclusions of liability for death or injury caused by negligence are generally ineffective.

Exclusions expressed to be "so far as the law permits" can be unfair.
A disclaimer of responsibility for contractors may be unfair.

Disclaimers to the effect that visitors enter premises "at their own risk" are unfair. Such provisions may be acceptable if they are qualified so that liability for loss is not restricted if the Landlord is at fault. Alternatively, the disclaimer can have effect only when someone else other than the Landlord is to blame.

Limiting terms so that liability is only accepted for negligence may not remove the risk of unfairness because other types of misconduct involving a breach of duty may cause injury or death.

Any exclusion of the implied term of fitness for human habitation of furnished property at the commencement of a tenancy could be unfair.

There should be no provisions transferring to the Tenant responsibility for items which belong to the Landlord (e.g. the Landlord's responsibility for structure/exterior etc under Section 11 of the Landlord & Tenant Act 1985).

A clause restricting liability only for losses where the Landlord or his Agent/Contractors are not at fault or which was not foreseeable when the tenancy agreement was entered into may be fair.

Terms disclaiming Landlord's liability for loss or damage due to the Tenant's fault may be acceptable.

A disclaimer that suspends a landlord's responsibilities when the tenant himself/herself is in breach of the agreement may be unfair. It would be unacceptable if it deprived the Tenant of redress if the Tenant committed a trivial/technical breach or where the Landlord could be partially responsible. For example if the Landlord has not complied with fire safety regulations or has failed to repair locks to common parts he/she would not be able to rely on such a contract term to escape his/her share of liability for resulting fire or theft due to the Tenant's breach by not for example setting a burglar alarm.

Terms limiting liability (e.g. amount of compensation) could be objectionable.

A term imposing a time limit on making a claim by the Tenant could be unreasonable if the time were shorter than was reasonable.

A term requiring prompt notification is reasonable so long as it does not restrict the Tenant's own legal rights. Clear language must be used. It is a term that should be highlighted.

A term excluding liability for delay or which permit an unduly long time to complete work will be unfair.

A delay for circumstances unavoidably caused by factors beyond the Landlord's control will be acceptable i.e. a force majeure clause (although the phrase force majeure should not be used).

A term allowing the Landlord to suspend the provision of benefits under the tenancy agreement will be unfair.

Terms allowing the Landlord to carry out his part of the agreement at his discretion will be unfair.

A term which provides that tenants are to go on paying when services are not provided as agreed is unfair.

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Guide correct as of 16th March 2015

V1-JC-16032015
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