If the tenancy agreement hasn’t been signed yet
The tenant could:
Ask the landlord to change or remove it before they sign
Even though this is a perfectly reasonable request, the risk is that the landlord may withdraw the offer and decide to rent the property to someone else. It may help if the tenant is able to point to an independent and authoritative source to highlight the illegality of the clause in a low-key way ie,
“I noticed there is a clause in the tenancy agreement that says X. I saw in an online tenancy resource that it says Y. It also refers to section Z of the RTA. Based on this information, this requirement should not be in the tenancy agreement. Would you mind removing that clause before we sign?”
Sign it anyway, knowing it cannot be enforced
This approach means waiting to see what happens, knowing that if a dispute arises, the condition is invalid and can’t be enforced. This defers any conflict on the matter, but may make resolving things harder than if the issue was raised earlier. It also means the landlord doesn’t get challenged about the unlawful and unenforceable conditions they have included in the tenancy agreement.
Sign it anyway, then point out the unlawful condition
If a tenant agrees to an unlawful condition, or says that they are happy to waive their rights under the RTA, that has no legal effect. This means that they can change their mind and challenge the condition at any time (s 11(3) RTA). This gets the tenant past the important stage of getting the agreement signed, but it may irritate the landlord early on in the tenancy, if the tenant points out a mistake and wants things changed after the agreement is already signed.
The best option will depend on...
The best option for the tenant will depend on:
- how important they think the condition is,
- whether they’re comfortable following the unlawful condition in the meantime,
- whether they feel comfortable asking the landlord to change the agreement, and
- how difficult it may be for them to find another rental property if the landlord decides to withdraw their offer to rent to them.
If an agreement clearly contains unlawful conditions and the landlord refuses to change them or withdraws their offer to rent, you could ask the tenant for permission to make a complaint against the landlord with the Compliance and Investigations Team at Tenancy Services.
We also have more suggestions about how to raise issues with a landlord.
If the tenancy agreement has already been signed
If the tenancy agreement has already been signed, the tenant could:
Seek agreement from the landlord to replace or remove the unlawful condition
If a condition is problematic, the tenant could ask the landlord to replace or remove it, eg, replace “No smoking anywhere” with “No smoking indoors”. Any decision to change the tenancy agreement needs to be recorded in writing and signed by both parties (s 13B RTA).
Give a 14-day notice to remedy
If the landlord doesn’t agree that the condition is unlawful, and tries to enforce it, the tenant should write to the landlord setting out the issue and giving a 14-day notice.
Apply to the Tenancy Tribunal
If the other options don’t work and things have escalated, the tenant could apply to the Tenancy Tribunal for a ruling.
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