Renting Homes: The Final Report - Law Commission

1.37 There is also power to define circumstances in which the unfair terms regulations
do not apply to a term of an occupation contract, or where the landlord may not
rely on the terms of the occupation contract. In these cases, the regulations may
also provide for the terms which are to apply in those circumstances. 25
1.38 Fundamental provisions incorporated as terms of the occupation contract, and
supplementary provisions incorporated as terms without modification, cannot be
challenged under the unfair terms regulations as unfair. 26 Only additional terms or
supplementary provisions which are incorporated as terms with modifications, will
be subject to challenge as being unfair. These recommendations address
concerns expressed to us by many landlords that they did not know exactly
where they stood in relation to the Unfair Terms in Consumer Contracts
Regulations 1999 and the interpretation of those regulations, in particular by the
Office of Fair Trading. 27
DEVELOPING THE SCHEME: CONSENSUS AND CONTROVERSY
1.39 From the start, we were asked to assume that the disposition of rights and
obligations, and the balance of rights and obligations as between landlords and
occupiers, that existed under the current law should remain broadly the same. In
particular, changes to the regulation of the private rented sector introduced by the
Housing Acts of 1988 and 1996 should be retained.
1.40 As with all Law Commission projects, we consulted widely in developing our
recommendations. We received over four hundred written submissions to our two
Consultation Papers; and we spoke at numerous public meetings with landlords
and tenants, lawyers and advisers, policy makers and administrators, and others
interested in this area of housing policy. 28 We wanted to build as much
agreement as possible about both the approach and the detail of our
recommendations. Analyses of the responses to our two Consultation Papers will
be made available to the Office of the Deputy Prime Minister, and published on
the Law Commission website.
1.41 Many of our initial ideas and thoughts were altered in the light of these
responses. We have radically changed our thinking on the regulation of
supported housing, where initially we failed to understand how that part of the
housing market really operates. We did not pursue suggestions to abolish the
suspended possession order, though we retain the idea of giving the Secretary of
State power to pilot alternative forms of procedure for dealing with rent arrears.
We amended our views on how to manage anti-social behaviour in the specific
housing context (though this has been an area where law and policy has
developed rapidly in any event).
25 Cls 205(2)(b) to (d).
26 See below, at paras 3.44 and 3.46.
27 The uncertainties currently facing many landlords are revealed in the Office of Fair Trading
Report Guidance in Unfair Terms in Tenancy Agreements Revised ed. Sept 2005.
28 See Renting Homes (2003) Law Com No 284, Annexes C and D at
http://www.lawcom.gov.uk/docs/lc284.pdf and above n 1.
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