Implied Terms in Tenancy Agreements
Implied terms are considered part of a legal lease, tenancy agreement, and licence, even though they are not written down. Implied terms can arise from common law and statute.
Note: any attempts to evade statutory or common law rights and responsibilities by way of any standard term in the tenancy agreement may result in the relevant term being found void under the Unfair Terms part of the Consumer Rights Act 2015. Examples might include a clause requiring rent to be paid without set-off (as this would attempt to exclude the tenant’s common-law right to set off against the rent any debt owed to the tenant by the landlord). Or a clause term requiring the tenant to be responsible for repairs to the gas appliances (as this is the landlord’s statutory responsibility).
The main terms implied by common law are detailed below:
The right of a tenant to quiet enjoyment of a rented property without intrusion or disturbance by a landlord
This right is implied in all tenancies and entitles the tenant to live in the property without disturbance from the landlord or anyone acting on the landlord’s behalf. Despite the name, the right to quiet enjoyment has nothing to do with noisy neighbours! Generally, a landlord does not have the right to turn up unannounced to check on a property or tenant. It has been held that a breach of repairing covenants may also constitute a breach of the covenant of quiet enjoyment. A right of quiet enjoyment is often written into the tenancy agreement. The landlord can then limit or widen the scope of the implied obligation or even make the covenant for quiet enjoyment conditional on the tenant complying with their duties. Where a covenant for quiet enjoyment is written into the tenancy agreement, the tenant will be entitled to require the landlord to comply with that covenant.
Tenant must use the property in a tenant-like manner
Tenant-like manner has been defined in case law as ‘to do the little jobs about the place which a reasonable tenant would do’. Tenant-like manner includes unblocking sinks when blocked by the tenant’s waste, keeping toilets and drains clear, regular cleaning, including windows, putting refuse out for collection and gardening if applicable. The tenant must not wilfully or negligently damage the house (nor allow others to do so).
The Tenant Shall Not Permit Waste
The tenant is responsible for ensuring the property is not damaged through their failure to act (e.g., reporting the need for repairs and keeping the property clean and free from rubbish during the tenancy).
Fair Wear and Tear
The tenant will be entitled to an element of fair wear and tear.
Fair wear and tear has been defined as “reasonable use of the premises by the tenant and the ordinary operation of natural forces”. The word ‘reasonable’ can be interpreted differently, depending on the property type and who occupies it. In addition, a landlord is not entitled to charge his tenants the full cost of having any part of his property, or any fixture or fitting, put back to the condition it was in at the start of the tenancy.
A landlord should not end up financially or materially in a better position than he was at the start of the tenancy, or than he would have been at the end of the tenancy after allowing for fair wear and tear.
When considering repayment of a deposit, landlords should keep in mind that the tenant’s deposit is not to be used like an insurance policy, where you might get total replacement value or’ new for old’.
The three tenancy deposit schemes (see later) have jointly produced a helpful leaflet that includes fair wear and tear information.
The tenant must not use the rent to pay for repairs, except in very limited circumstances
The tenant must report repairs to the landlord/agent. Using rent for any other reason could result in eviction from the property.