Tenancies and unfair trading

Readers will be aware that there has been a great deal of recent legislative activity affecting residential lettings. The Law Society is about to publish the third edition of the Housing Law Handbook, focusing on these developments. 

Most significant are the major reforms introduced by the Renters’ Rights Act 2025, representing the most extensive changes for nearly 40 years. These include the abolition of assured shorthold tenancies, amendments to the Housing Act 2004 to apply the Decent Homes Standard, and amendments to the Landlord and Tenant Act 1985 (see section 60(2) of the 2025 act) which will extend, albeit not immediately, Awaab’s Law to the private rented sector.

Alongside these headline reforms sits a lesser-known but potentially consequential change affecting consumer protection law: the Consumer Protection from Unfair Trading Regulations 2008 (the 2008 regulations) have been revoked by section 251 of the Digital Market, Competition and Consumers 2024 Act (the 2024 act). These regulations implemented EU Directive 2005/29/EEC, known as the Unfair Commercial Practices Directive, which sought to protect consumers from unfair commercial practices across all sectors.

This article discusses whether a residential tenant is afforded protection under the new Protection from Unfair Trading provisions in chapter 1 of part 4 of the 2024 act.

The statutory framework: defining “commercial practices”

The starting point is the definition of “commercial practice”. Under section 225(3) of part 4 of the 2024 act:

“‘commercial practice’ means an act or omission by a trader relating to the promotion or supply of —

(a) the trader’s product to a consumer,

(b) another trader’s product to a consumer, or

(c) a consumer’s product to the trader or another person;”

Although the wording differs slightly from that contained in the EU Directive, the basic concepts carry across from the revoked 2008 regulations (see paragraph 1.50 of the Competition and Markets Authority’s (CMA’s) guidance (CMA37)) – albeit the 2024 Act now goes further.

The CMA’s Unfair commercial practices guidance, published in November 2025, confirms that “commercial practices include anything traders do that could in some way affect consumers and the decisions they take”.

Tenant status under consumer protection legislation

It is important to recognise that consumer protection law operates through different statutory ‘tranches’, and definitions do not always align precisely. For example:

• Under section 249 of the 2024 act, ‘goods’ include immovable property, whereas section 2(8) of the Consumer Rights Act 2015 limits goods to tangible movable items.
• Regulation 6(1)(d) of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 expressly excludes residential tenancies. By contrast, schedule 22 of the 2024 act does not list tenancy agreements as excluded contracts.
• Section 248 of the 2024 act defines a ‘product’ as including a service, and section 249 provides that ‘supply’, in relation to a product, includes supply by means of a lease.
• Both section 249(c) of the 2024 act and section 2(7) of the Consumer Rights Act 2015 treat acting in the course of a business to include “the activities of any government department or local or public authority”.

Despite some variations in definitions across the different areas of consumer protection law, consumer status has consistently been interpreted broadly. The CMA’s 2014 Guidance for lettings professionals on consumer protection law states under the 2008 regulations: “Tenants of residential property are normally consumers and should generally be treated as such by both letting agents and landlords.”

Public and private landlords: supplying a service

Provision of housing in performance of a public function may be considered the supply of a service. This was set out in the Office of Fair Trading (OFT) Guidance on unfair terms in tenancy agreements (OFT 356). The guidance was revoked in 2017 but it referred to R (Khatun) v Newham LBC [2005] QB 37, where the unfair terms in consumer contract provisions were interpreted in the same way as those now contained in part 2 of the Consumer Rights Act 2015.

If case law shows that the activities of a local housing authority granting tenancies can be construed as supplying a service for the purposes of unfair terms, is there any objection in principle to a private landlord supplying units of accommodation to let being included for the purposes of unfair practices?

Are tenancy agreements protected under part 4 of the 2024 act?

In the CMA’s 2014 Guidance for lettings professionals on consumer protection law, the CMA advises: “The Consumer Protection from Unfair Trading Regulations came into force across the UK in May 2008. They apply to businesses across all sectors, not just businesses involved in the letting of property.”

In light of this, it is strongly arguable, given the carry across, that a tenant is afforded protection under the provisions set out in chapter 1 of part 4 of the 2024 act, Protection from Unfair Trading.

This means that the protections against unfair commercial practices, such as being misled into entering an agreement or being caused alarm or distress by harassment within the meaning of aggressive practices, should be held to apply to tenancy agreements.

Unfair commercial practices explained

Section 225(4) of the 2024 act defines a commercial practice as unfair if:

• it is likely to cause the average consumer to take a transactional decision they would not otherwise have taken due to, among other things:
  • a misleading action (section 226)
  • a misleading omission (section 227)
  • an aggressive practice (section 228)
  • a contravention of the requirements of professional diligence (section 229)
• it omits material information from an invitation to purchase (section 230)
• it is listed in schedule 20 (commercial practices which are in all circumstances considered unfair).

Aggressive practices

Under section 228 of the 2024 act, a practice is aggressive if it uses harassment, coercion or undue influence. In determining whether a commercial practice is aggressive, you should consider the following:

• the nature of the practice
• the timing and location of the practice
• whether the practice involves any threatening or abusive language or behaviour
• whether the practice exploits any vulnerability of a consumer
• whether the practice involves a threat to take unlawful action, and
• whether the practice requires a consumer to take onerous or disproportionate action in order to exercise rights that the consumer has in relation to a product.

Section 228(3) defines ‘coercion’ to include the use or threat of physical force, and ‘undue influence’ to mean exploiting a position of power in relation to a consumer so as to apply pressure which significantly limits the consumer’s ability to make an informed decision.

Remedies available to tenants

Section 232 of the 2024 act provides rights to redress for a consumer if each of the following four conditions is met:

1. The consumer and trader entered into a ‘consumer-to-business’ contract or the consumer makes a payment to a trader in return for a supply.
2. The trader (or provider) has engaged in a prohibited practice (meaning a misleading action or aggressive practice).
3. The prohibited practice was a significant factor in the consumer’s decision to enter the contract or make payment to the provider.
4. The product concerned is not an excluded product.

Under section 234, a consumer has a right to bring a civil claim for damages where they suffer financial loss or non-financial harm (such as distress or inconvenience) as a result of a prohibited commercial practice, provided the loss would not have occurred but for that practice and was reasonably foreseeable. Moreover, a consumer has a right to unwind the contract and have all monies paid under it returned to them if they were misled into entering a consumer-to-business contract.

Under the 2008 regulations, an example of an aggressive commercial practice is ‘pestering a consumer’. Schedule 1 to those regulations sets out a list of practices that were automatically regarded as unfair. For conduct occurring on or after 6 April 2024, the equivalent provisions are now found in schedule 20 of the 2024 act. The 2008 regulations continue to apply only to unfair commercial practices that took place before that date.

Paragraphs 25 and 26 of schedule 1 to the 2008 regulations, and paragraphs 27 and 28 of schedule 20 to the 2024 act, prohibit ‘conducting personal visits to the consumer’s home’, ‘ignoring the consumer’s request to leave or not to return’, and ‘making persistent and unwanted solicitations’. Though the qualification to that is ‘except to the extent justified to enforce a contractual obligation’. 

Course of conduct not required

The headnote to R v X Ltd [2013] EWCA Crim 818 records a ‘commercial practice’ for the purposes of the 2008 regulations could be constituted by a ‘single incident as well as by repeated behaviour’. This is to be compared with the need for conduct, required to establish liability, under the Protection from Harassment Act 1997. The principle derived from this case should equally apply to the 2024 act.

Conclusion

A tenant has remedies for unfair practices under part 4 of the 2024 act. It is nearly 10 years since the OFT Guidance on unfair terms in tenancy agreements was withdrawn, and it is 12 years since the CMA published its guidance for lettings professionals. Fresh guidance dealing with unfair consumer practices under part 4 of the 2024 act and unfair terms under part 2 of the Consumer Rights Act 2015 in relation to residential lettings is now required.