Renting Homes: The Final Report - Law Commission

1.31 The provisions of the Bill which are incorporated in this way are referred to as
“fundamental provisions”. When incorporated as terms of a particular contract,
they form the “fundamental terms” of the contract.
1.32 The appropriate authority (the Secretary of State or the National Assembly for
Wales) has power to prescribe further provisions for incorporation as terms of
occupation contracts. We intend this power to be used to deal with issues which
are of less crucial importance than those dealt with in the fundamental provisions,
but which need to be addressed to make the contracts work. 18
1.33 Provisions prescribed by the appropriate authority are referred to as
“supplementary provisions”. When incorporated as terms of a particular contract,
they form the “supplementary terms” of the contract.
1.34 In addition, parties will be free to add their own additional terms to address
particular issues relevant to the agreement.
Relationship of the scheme to consumer protection law
1.35 Our adoption of the consumer protection approach is based on the fact that, from
1999, the Unfair Terms in Consumer Contracts Regulations 1999 19 applied to
tenancy agreements. In Renting Homes we said that we wanted to extend the
principles contained in those regulations to all occupation contracts. 20 Those
principles should apply across the board, not just to those who under the 1999
regulations are “suppliers” and “consumers”. 21
1.36 Details of how these principles are to be put into effect will appear in regulations.
The Bill gives the Secretary of State power to make regulations relating to unfair
terms in occupation contracts. 22 In particular, regulations may make provision for
the parties to whom and the occupation contracts to which the unfair terms
regulations may apply. This enables the Secretary of State to ensure that the
regulations apply to all landlords and all contract-holders. 23 In the Bill, the general
term “unfair terms regulations” is used to refer to both the existing 1999
regulations and these Rented Homes-specific regulations. 24 We follow that usage
in this report.
18
We set out in Appendix A our recommendations on the terms that should be included as
supplementary terms.
19 SI 1999 No 2083.
20
(2003) Law Com No 284.
21
Compare with the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 No
2083) reg 4(1).
22 Cl 205.
23 Cls 205(1) and (2)(a).
24 Cl 236.
18