Testing an untried legal argument under the Renters' Rights Act (the legislation abolishing Section 21 no-fault evictions in England) is unlikely to end well. According to Tessa Shepperson, solicitor and founder of the Landlord Law Blog, the landlord who tests a loophole first is the one who pays for the litigation - even if they win.
The Act came into force earlier this year and, like any substantial piece of legislation, contains provisions whose meaning has not yet been settled by the courts. That uncertainty will not last. Until it is resolved, though, landlords who believe they have found a way around the new rules are placing a bet on an outcome nobody can predict.
The rent-in-advance example
Under the Renters' Rights Act, landlords in England cannot take any rent before the tenancy agreement is signed. Between signing and the tenancy start date, they can take one month's rent in advance only.
One question that has circulated is whether a landlord could insert a conditional clause - making the tenancy conditional on the tenant paying that month's rent before the start date. If the tenant fails to pay, the landlord treats the deal as void.
Shepperson raised this with a contact at Propertymark, who had put it to a government official. The response: it would not be allowed. That is not a court ruling, and a judge would look at the Act's actual wording rather than a civil servant's view. But the exchange is a useful signal.
Consider what happens in practice. A landlord grants a tenancy with a conditional clause. A tenant fails to pay. The landlord refuses to hand over keys. The tenant - having now had to find alternative accommodation at a higher rent - pursues a compensation claim for the difference. The landlord faces a contested hearing. Even a successful defence is likely to leave them out of pocket after legal costs. If the clause is found invalid, the damages could be significant. For a portfolio landlord, multiply that risk across multiple lets.
The free resources at Property Filter cover the Renters' Rights Act in more detail, including what the changes mean for void risk and tenancy management.
Why the first litigant always loses
Even a technically winning argument costs real money. Court fees, solicitor time, and the weeks or months spent managing the dispute come out of your pocket regardless of the outcome. A tenant who has had to find emergency accommodation and paid a higher rent elsewhere will argue for compensation that covers the difference. Judges tend to consider the practical harm suffered, not just whether the clause was void.
There is also the question of your relationship with that tenant before and after. A dispute that starts before the tenancy begins - over keys, deposits, and who owes what - rarely recovers into a functional letting. High turnover and short void periods are what make a portfolio work. Adversarial tenancies do the opposite.
Shepperson's view is straightforward: the law will be tested eventually, by someone. It simply will not be the landlord reading a legal blog before they act.
What this means for your portfolio
The practical issue is not just legal exposure. It is time, stress, and distraction from running your properties. A disputed tenancy ties up your letting. Your tenant's situation is uncertain too - they cannot move in, may be in temporary accommodation, and are likely to be hostile by the time any resolution comes. That relationship starts badly if it starts at all.
Tessa Shepperson's position is direct: let someone else be the test case. Landlords who operate clean, compliant tenancies are in a stronger position with tenants, with lenders, and - if things do go wrong - with courts. You can explore broader property investment strategies that work within the new rules rather than against them.
If you want to stress-test the financial impact of longer void periods or compliance costs on your returns, the Property Filter stress test calculator is a good starting point.
Key takeaways
The Renters' Rights Act restricts rent-in-advance to 1 month between signing and the tenancy start date - no payments before signing are permitted.
No court has yet ruled on whether conditional clauses designed to work around these restrictions are valid under the Act.
A landlord who tests an untried clause faces legal costs and potential damages even if their argument is ultimately correct.
The landlord who litigates first sets the precedent - and pays for the privilege, win or lose.
Clean, compliant tenancy agreements reduce your exposure and protect the landlord-tenant relationship from the outset.
