Tenancy agreement clauses that are unenforceable

Why it matters

Including unenforceable clauses can expose landlords to legal action from tenants, financial penalties, and reputational damage. It can also undermine the landlord's ability to enforce other, legitimate terms of the tenancy. Complying with current law, including consumer protection legislation, is not only a legal obligation but also essential for fostering good landlord-tenant relationships and avoiding costly disputes.

Legal requirements

• All tenancy agreement terms must comply with the Renters' Rights Act 2025.
• Clauses must not impose fees or charges prohibited by the Tenant Fees Act 2019.
• Any clause seeking to exclude or limit a landlord's statutory duties, such as those related to property condition, is unenforceable.
• Terms must adhere to consumer protection legislation, including the Consumer Rights Act 2015, ensuring fairness and transparency.
• Agreements must clearly define responsibilities and not place undue burdens on tenants that are typically the landlord's responsibility.
• Clauses attempting to restrict a tenant's right to complain or seek legal redress are unlawful.
• Any term that attempts to remove a tenant's right to terminate the tenancy in line with statutory provisions is invalid.
• Clauses related to data processing must comply with GDPR and the Data Protection Act 2018.
• Agreements must respect a tenant's right to quiet enjoyment and privacy.

Common mistakes

• Including blanket 'no pets' clauses without considering the tenant's right to request a pet under the Renters' Rights Act 2025.
• Attempting to charge prohibited fees, such as for checking out of the property or for professional cleaning.
• Drafting clauses that require tenants to undertake repairs or maintenance that are legally the landlord's responsibility.
• Failing to adequately define terms, leading to ambiguity and potential unfairness under consumer protection law.
• Inserting clauses that disproportionately penalise tenants for minor breaches or attempt to claim damages beyond actual loss.
• Trying to prevent tenants from altering the property at all, even minor cosmetic changes, which may be permitted under the Renters' Rights Act 2025.
• Including clauses that contradict or attempt to override statutory notice periods for ending a tenancy.
• Not reviewing and updating tenancy agreements regularly to reflect changes in legislation.

Practical guidance

• Regularly review your tenancy agreement template against current UK housing legislation, particularly after significant changes like the Renters' Rights Act 2025.
• Familiarise yourself with the Tenant Fees Act 2019 to ensure all charges listed in your agreement are permitted payments.
• Ensure your agreement accurately reflects your statutory repair and maintenance obligations as a landlord.
• Avoid 'copy-pasting' clauses from outdated or generic templates; always use a professionally drafted and compliant agreement.
• Seek legal advice if you are unsure about the enforceability of a specific clause or wish to add a unique term.
• Ensure all terms are written in plain, easily understandable language, avoiding legal jargon where possible.
• Consider tenant feedback and address any concerns they raise about specific clauses, demonstrating fairness and transparency.
• Communicate clearly with tenants about what each clause means and their respective responsibilities and rights.
• Keep detailed records of all communications and changes made to the tenancy agreement over time.

The Renters' Rights Act 2025 and Tenancy Agreements

The Renters' Rights Act 2025, with its main provisions commencing in 2026, significantly reshapes UK tenancy law. It abolishes assured shorthold tenancies, replacing them with a simplified system of periodic tenancies. This means that clauses in agreements attempting to fix a tenancy for a minimum term beyond the initial permitted period, or those that restrict a tenant's right to give two months' notice to leave at any point, will be unenforceable. The Act also introduces new provisions regarding pets, permitting tenants to request to keep a pet which the landlord cannot unreasonably refuse. Any 'no pets' clause that does not allow for such requests or gives the landlord absolute discretion without reasonable grounds for refusal will be void. Similarly, clauses attempting to prevent minor alterations may be challenged under the Act's new framework, which allows tenants to make certain improvements with landlord consent, which again cannot be unreasonably withheld. Landlords must ensure their agreements reflect these fundamental changes, rather than relying on outdated templates.

Unlawful Fees and Charges

The Tenant Fees Act 2019 strictly limits the payments landlords and letting agents can charge tenants in England. Any clause in a tenancy agreement that attempts to levy a prohibited payment is unenforceable, and the landlord may face financial penalties. Prohibited payments include charges for credit checks, professional cleaning services, inventories, referencing, or renewing a tenancy. The only permitted payments are rent, a refundable tenancy deposit capped at five weeks' rent (or six weeks' rent where the annual rent is £50,000 or more), a refundable holding deposit capped at one week's rent, payments for early termination, utilities, council tax, television licence, communication services, and default fees for late payment of rent or replacement of lost keys or security devices, provided these default fees are reasonable and genuinely reflect the costs incurred. For more information, refer to our article on The Tenant Fees Act: what you can and cannot charge. Landlords should review their agreements carefully to remove any clauses that contravene this Act.

Repairing Obligations and Property Condition

Landlords have statutory repairing obligations that cannot be contracted out of in a tenancy agreement. The Landlord and Tenant Act 1985 and the Homes (Fitness for Human Habitation) Act 2018 require landlords to keep the property's structure and exterior in repair, and to keep installations for the supply of water, gas, electricity, sanitation, and space and water heating in good working order. Any clause attempting to shift these fundamental responsibilities onto the tenant, or to make the tenant pay for repairs that are legally the landlord's duty, is unenforceable. For example, a clause stating the tenant is responsible for repairing a leaking roof or a faulty boiler would be void. While tenants are responsible for minor repairs due to their own negligence or misuse, the primary responsibility for maintaining the safety and habitability of the property rests with the landlord. Landlords must also ensure gas, electrical, and fire safety regulations are met, irrespective of any agreement clause.

Consumer Protection and Unfair Terms

Tenancy agreements are subject to consumer protection law, primarily the Consumer Rights Act 2015. This means clauses must be fair and transparent. An unfair term is one which, contrary to the requirement of good faith, causes a significant imbalance in the parties' rights and obligations to the detriment of the tenant. Examples of potentially unfair clauses include those that grant the landlord excessive powers of entry, impose disproportionate penalties for breaches, attempt to exclude the landlord's liability for injury or damage caused by their negligence, or restrict the tenant's statutory rights. Clauses that are ambiguous, complex, or hidden within lengthy text may also be deemed unfair. Landlords must ensure their agreements are drafted in plain, intelligible language and that all terms are reasonable and balanced. Our page on Landlord obligations under consumer protection law provides further details on these duties.

Regional Differences: Scotland, Wales, and Northern Ireland

Housing law is devolved, meaning rules differ significantly across the UK. In Scotland, the Private Housing (Tenancies) (Scotland) Act 2016 introduced the Private Residential Tenancy, which replaced assured and short assured tenancies. This tenancy is open-ended, offering enhanced security of tenure, and has its own specific rules regarding termination and rent increases. Wales has the Renting Homes (Wales) Act 2022, which came into force in December 2022, introducing 'occupation contracts' and significantly altering notice periods, landlord responsibilities, and successions. Northern Ireland operates under its own distinct housing legislation, primarily the Private Tenancies (Northern Ireland) Order 2006, which governs notice periods and landlord obligations. Landlords operating in these devolved nations must ensure their tenancy agreements, and indeed their entire approach to letting, comply with the specific laws applicable to that jurisdiction. A clause enforceable in England may be entirely unenforceable or even illegal in Scotland, Wales, or Northern Ireland.

Other Common Unenforceable Clauses

Beyond the major legislative frameworks, several other common clauses are often found to be unenforceable. These include terms that attempt to waive a tenant's right to quiet enjoyment or privacy, for example, by allowing the landlord unrestricted access without proper notice. Clauses that prohibit children or discriminate against certain groups are illegal under the Equality Act 2010. Any clause requiring a tenant to pay for 'wear and tear', the natural deterioration of a property through ordinary use, is also unenforceable, as this is typically the landlord's responsibility. Clauses that demand the tenant returns the property in a condition better than it was at the start of the tenancy, considering fair wear and tear, are likewise void. Furthermore, attempting to prevent tenants from voting, having visitors, or engaging in lawful activities within their home could also be seen as an unreasonable restriction on their rights. It is vital to remember that an agreement cannot override statutory rights.