Private renting, as the term implies, is a private agreement between a tenant and landlord. The rent payable, when it is payable, whether in advance or in arrears, whether a deposit is paid, whether furnishings are provided or not, are all matters to be agreed between tenant and landlord.

In England and Wales, unless the tenancy is to be for a fixed period in excess of three years, this agreement could be verbal – although this is inadvisable, since verbal agreements are often hard to enforce. Even if verbal, tenants whose assured shorthold tenancy started on or after 28 February 1997 have a right to ask for a written statement of the main terms of the tenancy, including:

• the date on which it began;
• the amount of rent payable;
• the dates on which it is due;
• any rent review arrangements;
• the length of any fixed term.

And certain information – about deposits, gas safety and energy performance – must in any case be provided by the landlord in writing.

So, when agreeing to let a property to new tenants, prudent landlords should always draw up a written tenancy agreement. They do not have complete carte blanche as to what is included. To some extent this is dictated by legislation, including the Housing Acts and the Unfair Terms in Consumer Contracts (Amendment) Regulations 2001 and by Office of Fair Trade guidance on unfair terms in tenancy agreements (www.oft.gov.uk).

The general rule is that the greater the number of restrictions and conditions that are placed on tenants and the more limitations put on landlord liability, then the greater the likelihood that the tenancy agreement will be open to challenge.

Legally it makes no difference whether the property is to be provided ‘furnished’ or ‘unfurnished’ or somewhere in between. The tenure, the right to occupy the property, will be the same.

The exact coverage and content of a tenancy agreement will, of course, depend in large part on the form of tenancy which the let fall under. In the vast majority of cases new lets will, as a matter of default, be assured shorthold tenancies (ASTs) (new tenancies for which the rent is more than £100,000 a year, or which are rent free or for which the rent is £250 or less a year - £1,000 or less in Greater London – cannot be ASTs but in most cases may be assured tenancies)’

In simple terms, ASTs put landlords in the driving seat when it comes to ending tenancies. Although things can, and sometimes do, get messy and protracted, landlords should never have to wait more than a few months to regain possession of their properties even from the most delinquent and crafty tenants. 

An AST can be for any period but, regardless of this, tenants have security of tenure for the first six months. During this time they can only be required to leave if they breach the terms of the agreement in such a way as to give grounds for possession (see Possession). After the expiry of six months, or at the expiry of the fixed term of the tenancy, if longer, landlords may require tenants to leave simply by giving two months’ (‘section 21’) notice.

For this reason ASTs are most commonly for six month periods only. Tenants can then be asked to leave at the expiry of the six months. Alternatively, when the fixed term expires, the landlord may grant the tenants a further fixed term tenancy agreement, or simply allow them to stay on under the same terms. In such circumstances there is no need for additional paperwork; the tenancy simply becomes a ‘periodic tenancy’.

Tenants can quit periodic tenancies by giving the landlord one month’s notice, and may be required to leave on receipt of two months’ written notice.

Tenancy agreements provide landlords and tenants with both the express rights and obligations spelled out in the agreement (always provided these are not at odd with the Housing Acts – so for example, a landlord may not require tenants to give longer periods of notice than is laid down, or claim the right to give shorter notice that required by legislation) and with implied rights. The latter may or may not be referred to, but are included in statute or are common law rights.

As in any legal agreement, tenancy agreements should set out the parties to the agreement, the date on which the agreement is made. ASTs should also include the start date and duration of the tenancy, the amount and frequency of rental payments. If the tenancy is for more than six months, the AST can include break clauses and also agreed rental increases at specified future dates. Responsibilities for general outgoings (rates, utility bills, repairs and maintenance) and other responsibilities of the two parties should be recited.

Landlords have an opportunity to include restrictions that they deem necessary – for example a bar on redecoration without prior written consent from the landlord or restrictions on the number of people who may live or stay in the premises.

There may be peculiarities to the property, such as a right of way over part of the garden, which need to be specified.

It is also good practice to include clauses dealing with late payment of rent and also with the termination of the tenancy.

When it comes to late payment of rent, landlords can specify a (reasonable) rate of interest that may be charged on overdue amounts and also make tenants responsible for any debt collection costs should these arise because of late payment of rent.

Sometimes tenants leave possessions behind. Dealing with these can be a nuisance if nothing is said about them in advance. A reasonable condition would be to say that the landlord may remove and store any possessions left by a tenant for (say) 28 days after which he or she may, after giving the tenant due notice, dispose of them – the tenant remaining liable for reasonable removal, storage and disposal costs.

It is also reasonable to say that the premises must not be left unoccupied for more than, say, 21 days (or the maximum specified in the relevant insurance policy). The tenancy agreement can specify that if the property is left empty for any longer period the landlord will have reasonable cause to believe the tenant has abandoned the property when he or she may (even though the tenant has not given formal notice), treat the tenancy as ended and enter the premises.

Other possible restrictions include specifying that a particular room or area may not be used and is to be kept locked, requiring that tenants or their guests do not smoke indoors, or do not keep pets in the house. However, any clauses of this nature should not be so restrictive as to be unreasonable.