Is it a legal requirement to have a written tenancy agreement?
In England and Wales, there is no legal requirement to record a tenancy agreement in writing. A landlord can agree the terms with a tenant orally. In Scotland all short assured tenancies (SATs) must be recorded in writing to be valid.
Oral arrangements are sometimes preferred when the landlord knows the tenant in advance and trusts him, or when the landlord wishes to keep the arrangement informal so that it can be ended or changed quickly.
Not having a written agreement disadvantages the landlord only, and not the tenant
The most critical piece of information to take away from this article is that an assured shorthold tenancy is created under certain circumstances regardless of whether it is formalised in a written document.
Not writing the agreement down does not change the rights that a tenant has under an AST or the obligations of a landlord.
Additionally, a tenant has certain rights that cannot be taken away, either within a written agreement or otherwise. A landlord cannot remove these statutory rights by overriding them in an oral agreement, nor if can he pretend that they weren’t part of the contract because they were not written down.
Some of these rights relate to ending a tenancy and changing the terms, so it would be a mistake to think that an informal arrangement can in fact be ended or changed quickly. With an oral agreement, it is not the arrangement that is informal, just the record of the arrangement.
Reasons to use a written tenancy agreement
It is a criminal offence for a landlord not to provide a tenant with a written summary of the key terms of the arrangement, both within 6 months of the start of the tenancy or within 28 days of a request by the tenant for such information. If a landlord provides some information to the tenant in writing, it is just as easy to record the entire agreement in writing.
A written agreement signed by all parties cannot be disputed at a later date. A written agreement acts as a record of what was agreed. If a tenancy has been agreed orally, there may be arguments later about the terms that were agreed, even if, at the time of agreement, the terms seemed to be clear.
Once a tenancy has started, you cannot force a tenant to sign a contract, whether it varies the terms agreed orally or simply confirms them. A landlord should not let a tenant take occupation until the paperwork is signed (and the deposit has cleared the bank). If he does, perhaps after agreeing the terms orally, he won’t be able to document them.
Much of the law favours the tenant. However, there are situations where the balance of power can be returned to the landlord by including certain clauses within the agreement. An example is restricting some of the things the tenant may do within the property. A written agreement allows the landlord to prove that he has protected his position to a greater extent than an oral agreement would allow.
To use the statutory deposit schemes, a landlord must provide a written tenancy agreement.
To use the accelerated possession procedure to evict problem tenants, a landlord must have provided a written tenancy agreement.
Certain organisations such as banks and benefit offices may require the tenant to prove he is such by requesting a copy of the tenancy agreement. It may not be possible for the tenant to maintain the property in the state the landlord wishes if the tenant cannot access services that require him to prove he is a tenant.
There is no legal requirement for licences to occupy to be documented in writing. However, many of the same arguments for having a written tenancy agreement apply.
Further information and useful documents
We recommend that you read next about what a letting agreement should cover next.
If you require a tenancy agreement template, you may be interested in looking at our AST agreement templates.