Tenant Fees Bill: Good Intentions – Weak Protections

Abstract

The Tenant Fees Bill is set to be passed into law in England. The Bill does three things: it bans most tenant fees in the residential tenancy market; it improves protection of holding deposits paid by tenancy applicants; and it provides for public and private enforcement mechanisms. Regrettably, however, the Bill neglects basic principles of English contract and agency law. Instead, the drafting builds upon contemporary letting practices and seeks to correct its worst features. As a result, the Bill problematically permits letting agents to charge tenants certain fees for services that in law are provided to their principal: the landlord. It also regulates the treatment of holding deposits without addressing their nature in English common law. Finally, the Bill prescribes enforcement recourse to independent agencies and tribunals that are already overburdened and under-resourced. Despite these problems, the Bill improves on present letting law and will bring a welcome rebalancing of rights and obligations in the tenancy market.

Keywords: landlords’ duties, leases, residential tenancies, tenants’ rights, Housing Act, Tenant Fees Act, letting agent, deposits, holding deposit agreement, agreement for lease, reservation fee, key money, security deposit, pre-tenancy, unfair terms, repudiation, breach of contract, ARLA Propertymark