I want to talk about the numbering for the new Welsh tenancy agreements.
“That’s a pretty boring topic” you may be thinking to yourself, and I suppose it is. But it is a really important one. And something we need to think about. It’s all about
The Usability of Tenancy Agreements
My view about tenancy agreements is that they should be an important document which explain to both landlords and tenants the rules which govern how their tenancy (or in the case of Wales after 15 July 2022, their contract agreement), will work.
So they should be used by both parties as a helpful and easy to understand guide. Not shoved into a drawer and never looked at again because they are so confusing.
But most legal documents are a morass of legalese and pomposity. This is why in 1994 the Unfair Terms rules were brought into law. (The Unfair Terms rules are now part of the Consumer Rights Act 2015 and can be found in Part 2 of that act.)
Transparency and numbering
The unfair terms rules include a requirement for a legal document to be ‘transparent’ (s68). which is described as meaning being ‘expressed in plain and intelligible language and’ being ‘legible’.
In my view, part of the legibility of a document is the way that it is organised.
If you are trying to find what an agreement has to say about, say, the deposit, you expect to find all the deposit related clauses together in the same place. Not scattered around the document.
It is also helpful if the numbering of the document reflects this. What do I mean by this?
My preferred numbering system
I have always preferred the numbering which goes:
1 Topic one
1.1. First clause in topic 1
1.2. Second clauses in topic 1
1.2.1. First sub-clause in topic 1
1.2.2. Second sub-clause in topic 1
2 Topic 2
2.1. First clause in topic 2
2.1.1. First sub-clause in topic 2
The advantage of this system is twofold
- If you know that, say, your deposit related section is 2, then if you see a clause citied which is (say) number 18.104.22.168, you will know that it relates to deposits. It must be in the deposit section because it starts with 2.
- It is easy to insert new clauses without messing up the rest of the numbering below (and any cross-referencing there may be)
So let’s say we have a document with 70 pages and on page 40 you find a clause (j)(iii). It may be that the whole of page 40 is taken up with sub clauses of (j).
But where does that clause fit into the scheme of things? You may have to go three pages back to find that (j) is actually part of clause 15 which (after going back another couple of pages) you find is in the section headed [whatever].
However, if instead of (j)(ii) the section is numbered 5.10.2 – it’s a lot easier. Because it will be easier for you to locate where section 5 starts and see what it is about. It just makes the whole document easier to get a grip on.
Numbering in the Welsh Contracts
The Welsh contracts are halfway to this system as they start with a nice contents list. There are 19 items in that list (if you count the Annex) which could form the basis of my preferred numbering system.
However, instead, we have consecutive numbering from start to finish, ending with clause 56.
But there does not seem to be any consistency in the sub numbering. I have just gone to the end of the contract to check what the last clause number is, and you can see it there –
- Clause 55 has sub sections (1) and (2)
- Clause 56 has sub sections a) and b).
Some of the sections have a lot of sub sections included. Normally it is a number in brackets (1) followed by a letter a) followed by a roman numeral i) but not always.
Its like different people drafted different parts of the agreement and did not talk to each other about how they were to be numbered.
So why am I making a fuss about this?
The main reason (apart from the general usability reasons discussed above) is – what do we do about additional clauses?
The Welsh government accept that there will be additional clauses. This is specifically mentioned in the explanatory notes, for example, a pets clause is mentioned. In my last post here I referred to the need for extra deposit clauses.
But where do you put them and how do you number them?
Say the deposit clauses. In the model contract, these are clauses 4 and 5. I have some 5 extra clauses I want to add about deposits. Where do I put them?
- If we keep the Welsh numbering and I put them after clause 4, then this will mess up the numbering for the whole of the rest of the contract.
- However, if I put all my additional classes together at the end, this makes the document less readable and less usable. Because all clauses on the same topic should be together. They should not be split up into two parts.
Whereas if we use my preferred numbering system, the extra deposit clauses go in section 2, and have clause numbers beginning with 2. This will not affect the numbering in the rest of the agreement. Or any of the cross-referencing.
Is changing the numbers allowed?
This is a bit of a worry. Because if an agreement is altered in an unacceptable manner the landlord has to pay the tenant up to 2 months worth of rent, depending on when a corrected version is given.
So is the numbering something that can be changed or not? My view is that it can.
Section 33 of the Act provides for editorial changes and although it does not mention numbering specifically I suspect it can be included in its scope – as I will not be changing the actual wording of any fundamental or supplemental clauses.
At the moment I am working on re-numbering the contract. It’s not easy but I suspect that once I have done it properly and sorted any cross-referencing out, it will make life easier.
Although, I will need to have the model tenancy to hand to check cross-referencing is done correctly.
I understand that the Welsh Government may be amending the model contracts before the deadline (and perhaps afterwards). It would be nice if they could amend the numbering to my system (although I did not invent it!). As it would make subsequent changes easier to deal with.
It also makes me wonder about the validity of a contract issued in (say) August 2022 if the Welsh Government amend the model contract in February 2023.
Have they a plan for that?