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Varying terms of the tenancy

This content applies to England

Statutory restrictions on varying the terms of a secure tenancy .

When terms can be varied

The Housing Act 1985 provides that the terms of a secure tenancy can only be varied where:[1]

  • the variation is by agreement between the landlord and tenant, or
  • the variation is of the rent or payments for rates, council tax or services, and the variation is in accordance with a provision of the tenancy agreement providing for such changes, or
  • in relation to a periodic tenancy, the landlord gives notice of that variation.

Preliminary notice

In respect of periodic secure tenancies the landlord normally has to serve the tenant with a preliminary notice:[2]

  • informing the tenant of its intention to serve a notice of variation
  • specifying the proposed variation and its effect,[3] and
  • inviting the tenant to comment on the proposed variation within a 'reasonable' time, which must be specified in the notice.

The landlord must consider any comments made by a tenant within the period specified in the preliminary notice.

There is no requirement to serve a preliminary notice where the variation relates to rent, rates, or payments for services or facilities,

Notice of variation

The landlord may then serve the notice of variation itself which must specify the variation and the date from which the variation will take effect –  which must be at least four weeks or the rental period, whichever is longer. Along with the notice, the landlord must provide information that the landlord considers necessary to inform the tenant of the nature and effect of the variation.[4]

Where the landlord has included a term within the tenancy agreement allowing for variation of the tenancy agreement in a different way than the statutory framework allows, that term of the agreement will be void. This is so even if the term is beneficial to the tenant (for example, stating that variation can only occur where a majority of a tenants association agree to the change).[5]

Advisers should be aware that where proposed variations relate to a housing management issue, the landlord may also be required to carry out the consultation required by section 105 of the Housing Act 1985.

Advisers should also remember that certain terms implied by statute, such as section 11 of the Landlord and Tenant Act 1985 may not be varied by this method or otherwise.

[1] ss.102-103 Housing Act 1985.

[2] s.103 Housing Act 1985.

[3] Rochdale BC v Dixon [2011] EWCA Civ 1173.

[4] s.103 Housing Act 1985.

[5] Kilby v Basildon DC [2006] EWHC 1892, Admin, (2006) HLR 46.

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