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Lord Dubs: I thank the Minister for what he has said although I am not persuaded by it. The Minister said that the average stay in an assured shorthold tenancy
was between two and two-and-a-half years, but that average begs a number of questions. One needs to know the range of lengths of tenancy. I put it to the Minister that in inner-city areas it is extremely likely that the average length of a tenancy is shorter than may be the case in other parts of the country. Although I am not persuaded by the Minister's argument, we have had a lengthy debate on the clause and we may return to it on Report.Clause 90 [Duty of landlord to provide statement of terms of assured shorthold tenancy]:
Lord Dubs moved Amendment No. 242E:
The noble Lord said: In moving this amendment, I should like to speak also to Amendment No. 242F. We now reach Clause 90, to which the Minister referred on a number of occasions in earlier debates. The purpose of the amendment is to protect tenants from landlords who might attempt to use the clause to change the terms of a tenancy, which could enable them to gain possession or to achieve some other end. The amendment is a safeguard for tenants against the minority of landlords who might seek to exploit their tenants.
We are seeking to build onto Clause 90, which was introduced by the Government as a response to the likelihood that landlords will increasingly fail to provide written tenancy agreements once shorthold tenancies become the default tenancy. This is a simple proposition. It provides an additional safeguard for tenants against that small minority of landlords who might wish to abuse their position by changing the nature of the tenancy in a way that was not agreed originally between the landlord and the tenant. I beg to move.
Lord Meston: I should like briefly to support the amendment which stands in my name also. As the noble Lord, Lord Dubs, said, Clause 90 is of value but it is open to some abuse as the landlord may try to slip into a written statement a unilateral variation of the oral terms of the original tenancy. There is a sanction within Clause 90 for failure to comply with the requirement to provide a written statement, but it seems that there is no specific sanction or remedy for giving an incorrect or an incomplete statement.
Perhaps I may draw another analogy to the employment field where there is a requirement--indeed, a more stringent requirement--on employers to provide a written statement of the terms of employment. In that area, a dispute as to what was or was not a term of the original contract of employment can be referred to an industrial tribunal. There does not seem to be any equivalent provision in this clause to deal with disputes over terms which the landlord may put into the written
Lord Strabolgi: I support the proposed amendments which stand in the names of my noble friend Lord Dubs and the noble Lord, Lord Meston. Without the amendments, tenants who have no written contracts may well find themselves subject to tenancy clauses which they did not originally agree. In the worst scenario, they may find themselves facing eviction based on terms which the landlord has provided but to which the tenant did not agree or on incorrect information. When tenants take up occupation, landlords frequently agree to vary the rent level if the housing benefit is set at below the rent level that is asked. However, at the end of the tenancy landlords often claim arrears of rent based on the original agreement. More often than not, that results in a tenant being unable to get back the deposit.
The introduction of the notices will provide an opportunity for unscrupulous landlords to claim rents which were never originally agreed and to claim possession on the ground of arrears--and they can do that if there is no security. Also, there have been cases where deposits have been given to third parties such as house agents, some of which are fly-by-nights and disappear or go bankrupt. If the deposit is then not forthcoming, the tenant gets the blame and is thrown out. I support the amendments.
Lord Swinfen: I understand what the amendment is intended to do, but if the original agreement was oral, how on earth does the tenant prove that a notice is changing the terms of that agreement?
Lord Mackay of Ardbrecknish: It might be worth starting by saying that it is sensible both from the tenant's point of view and the landlord's point of view that there is a written statement of terms and conditions before the tenancy is even taken up. That is a sensible precaution for both to take.
Clause 90 was introduced on Report in another place. It acts as a safeguard for shorthold tenants whose landlords do not provide a written tenancy agreement under the new arrangements. The clause would require the landlord to provide the tenant, on request, with the most important terms of the tenancy relating to rent and security of tenure. A landlord who failed to provide the information on request would be liable to a fine on summary conviction.
It may not be prudent, as I have said, for a landlord not to have an agreement in writing. Nevertheless, an oral contract is every bit as binding on both parties as a written agreement. I understand the concerns of the noble Lord, Lord Dubs, that a minority of landlords may seek to exploit their tenants' rights by changing the terms of the tenancy in a subsequent written statement in order to gain possession. However, let me reassure the noble Lord that there are safeguards in the system to prevent a landlord from succeeding in such action.
The noble Lord, Lord Meston, said that there was no provision for resolving disputes. I do not agree with him. Under existing legislation a landlord cannot
To recover his property, the landlord will have to persuade the court that he has grounds for doing so under the Housing Act 1988. In coming to its decision on whether to grant a possession order, the court will take into account all the facts of the case, including the views of both the landlord and the tenant on the nature and terms of the tenancy. The tenant will have an opportunity to put his views at the court hearing. The court would need to satisfy itself that, where a landlord has supplied a written statement under Clause 90, the terms contained in it are an accurate reflection of what both parties had originally agreed.
In order to reinforce the court's discretion in that area, the Government included subsection (5) in Clause 90. That makes it clear that the written statement provided by the landlord
If the court is in any doubt about the nature and terms of the tenancy agreement, that would be reflected in its decision on whether to grant a court order. If the court is not certain that the landlord has a right to repossession, it will not grant an order. If the reverse is true, it will. In neither circumstance would the tenant be evicted illegally.
Amendment No. 242F would impose a criminal sanction on landlords seeking to use the written statement as a means of changing or introducing terms which had not previously been agreed by both parties. As I have already explained, Clause 90(5) provides the tenant with reassurance that the written statement cannot be deemed conclusive evidence of the original oral agreement. If the tenant disagrees with any of the written terms, he is free to pursue that with the landlord and to express his view in a court hearing if the landlord subsequently seeks a possession order. As I have already explained to the Committee, the landlord would have to persuade a court that the statement was a bona fide record of the original tenancy agreement.
I hope that I have explained the situation, and that the noble Lords, Lord Dubs, Lord Meston and Lord Strabolgi can be assured that there are protections against the kind of scenario that they described. Clause 90 provides adequate reassurance for the minority of tenants--it is a minority--whose agreements are made orally. I hope that with those assurances and explanations the noble Lord, Lord Dubs, will feel able to withdraw his amendment.
Lord Dubs: I take some pleasure from a statement that the Minister slipped in at the beginning of his last remarks; namely, that it would be prudent and sensible,
Amendment, by leave, withdrawn.
[Amendment No. 242F not moved.]
Clause 91 [Form of notices under section 21 of the Housing Act 1988]:
Page 62, line 8, at end insert--
("( ) A landlord who seeks to rely on terms set out in a notice provided under subsection (1) above, which were not agreed by the parties, in order to gain possession under any ground, shall be guilty of an offence of illegal eviction under the Protection from Eviction Act 1977.").
"shall not be regarded as conclusive evidence of what was agreed by the parties".
In other words, the court is not obliged to regard the written statement as a binding document.
5.15 p.m.
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