When an implied covenant conflicts with a lease’s express covenant
If there is a contradiction between a covenant implied by law and the express terms of your lease, then the express terms generally prevail. For instance, a landlord may wish to build a tarred roadway past your block of flats to serve his neighboring block: if your lease allows him to reserve a right of way, then he will be allowed to do so in other words, he can ‘derogate from his grant’ because the lease allows him to do so.
Note: a landlord cannot contract out of certain repairing covenants imposed by law. Where he is under a statutory duty to keep premises in repair, he will not be able to write a term into the lease which will allow him to evade his legal obligations.
A landlord cannot regain possession of residential accommodation without a court order unless the tenant leaves willingly.
‘Small print regulations’
Under landlord and tenant agreements, where
(a) the landlord is in business and
(b) the contractual terms are standard (i.e. the landlord gives the tenant a pro-forma standard tenancy agreement) then the ‘small print regulations’ under the unfair terms regulations apply to these contracts.
Do note: both conditions (a) and (b) must be present
However, the regulations do not apply if it is a private landlord and the court takes the view that he is not ‘in businesses. This might be the view taken of the situation where, for example, a friend has sublet a flat to you while he goes on an extended holiday. They would also not apply if your landlord is in business but has negotiated an individual agreement with his tenant.
Special regulations apply to the safety of private-sector accommodation.
With regard to the installation and fitting of gas appliances, landlords are under a duty to keep and maintain all appliances and installation work in a safe condition. The regulations are extensive in scope and include the following:
• To ensure that gas fittings and flues are maintained in a safe condition
• to carry out annual checks
• to keep a record of the inspections
• to use only an installer registered with CORGI.
Note: the landlord is not responsible for the tenant’s gas appliances.
You have just become a tenant in a furnished flat. You are concerned about the safety of the gas fire in the lounge. Your landlord assures you that the fire is safe and that he carries out regular annual inspections. Under the regulations, tenants are to be issued with a copy of the safety check record within 28 days of the check having been carried out. New tenants are entitled to a copy before they move in to the premises. The landlord must ensure that the check has been carried out within one year before the start of your lease. If however, the gas fire has been installed for less than 12 months, the next check should be 12 months from the installation date.
In response to outbreaks of fire, particularly in rented accommodation, safety regulations were passed to deal with certain very dangerous materials being used in upholstery. Today it is an offense for a shop to sell furniture which does not comply with the current safety regulations which set levels of fire resistance for domestic upholstery and other furnishings. Landlords must ensure that all furniture in all let accommodation must comply with these safety requirements.
There is no regulation that all electrical appliances need an annual inspection. However, landlords have to ensure that such appliances are safe. Examples given include worn plugs and overloaded circuits, but the regulations would apply to other appliances including heaters, television sets etc.