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joel_priest
07-11-2005, 10:58 AM
Can someone just confirm whether a months notice should be 4 weeks, or one calender month, i.e If the notice is handed in on the 1 st of October it would be the 1 st of November that the tenancy agreement ends.

?

dazalock
07-11-2005, 11:04 AM
IF you pay your rent monthly, then you should give 1 calander months notice. You must give this on a rent day. So if you pay rent on the first of Novemeber, you give notice with your rent and your notice period ends on the 30th November 2005, i.e. you have vacated by the 1st December.

You have not given enough infor on your AST to give a more conclusive answer.

joel_priest
07-11-2005, 11:09 AM
to clarify, our rent is due on the 11th of each month I gave our notice on the 31st October so I am now assuming we can vacacte the property on the 31st November.

However regarding the one months notice from the rent due date this is not stated anywhere in the agreement. I have argued this with the Landlord but if it is not stated is this still the case. I cannot see how I can be held to a specific date which effectively makes it more difficult to then find a new property.

If this is the case then I will end up paying two lots of rent for two properties.

dazalock
07-11-2005, 11:11 AM
What are the dates on your AST, or has the AST now lapsed into a periodic tenancy?

joel_priest
07-11-2005, 11:14 AM
the ast has now gone into a periodic agreement as we have been there since august 2004 and have not signed a new agreement.

Energise
07-11-2005, 11:38 AM
The Protection From Eviction Act states a minimum of 4 weeks and says nothing about being date specific.

dazalock
07-11-2005, 12:09 PM
I refer to some old threads:

http://www.landlordzone.co.uk/forums/showthread.php?t=750&page=1&pp=10&highlight=notice+tenant

Not disagreeing with you energise, just pointing out the confusing points of view.

Energise
07-11-2005, 12:19 PM
I refer to some old threads:

http://www.landlordzone.co.uk/forums/showthread.php?t=750&page=1&pp=10&highlight=notice+tenant

Not disagreeing with you energise, just pointing out the confusing points of view.


I will shut up then, :)

joel_priest
07-11-2005, 13:12 PM
My head hurts from all these views!!

thanks for your help by the way guys.

I am confused though, I have checked with the agency who are dealing with the property we are moving into and they said they never insist a tenant gives one months notice from the rental due date. And I have checked the agreement we have with the current landlord (which is now a periodic agreement) and it does not state we have to give the notice on the rent due date.

It seems it is only to benefit the landlord.

Energise
07-11-2005, 13:23 PM
It seems it is only to benefit the landlord.

Maybe the tenant should have to give the same notice as a landlord, a landlord has to give 2 months notice ending on the last day of a rental period.

(any clause in your agreement regarding notice is voided when your tenancy lapses into a periodic tenancy, so the fact that its not there has no relevance and is covered by statute/common law)

joel_priest
07-11-2005, 13:28 PM
yes i understand but if this is the case then I am being punished even though I have given the landlord one months notice.

he is not losing out on any money!

dazalock
08-11-2005, 10:55 AM
Hi

Just come across a article on the Painsmith web site.

http://www.painsmith.co.uk/painsmith_files/articles/enforcing.doc

Another common clause in a tenancy Agreement is a clause stating that if the tenancy becomes periodic then the Tenant must give one or two months notice of his intention to terminate the Agreement. Can such a clause be enforced? Not if the Judge is aware of Section 5 of the Housing Act 1988 which clearly states that any clause in a fixed term Assured Shorthold Tenancy which makes provision for determining the tenancy shall not have effect once the tenancy becomes periodic. The notice clause will therefore be void. This means that the Tenant effectively renews his contract from month to month by paying rent on the rent due date. This binds him for the whole period, that is one month, with no requirement to give any notice to the Landlord or his Agent.

So, it seems that the contract is renewed each period in a periodic tenancy and therefore the tenant can leave at the end of each period without giving any notice at all!

Energise
08-11-2005, 11:30 AM
So, it seems that the contract is renewed each period in a periodic tenancy and therefore the tenant can leave at the end of each period without giving any notice at all!

I have posted that before daza and I emailed Painsmith about it and the response was.

"section 5 of of the Housing Act 1988 does void a notice clause but common law kicks in."

Daytona
09-11-2005, 13:57 PM
Joel, I'm not surprised that you're confused, given the different information and lack of attributable sources. It's a problem that appears to plague this forum. This from A Practical Approach To Landlord And Tenant (http://www.amazon.co.uk/exec/obidos/ASIN/0199273758/) by landlord and tenant law specialists Simon Garner and Alexandra Frith (both barristers).

"Notice, as well as expiring upon the correct date, must be of sufficient length. Generally the length of notice should be at least one rental period. Thus a weekly tenancy requires one weeks notice, a monthly tenancy one month, a quarterly tenancy 3 months and a six-monthly tenancy six months. A periodic tenancy for any period of over six months requires only six months notice. These are the notice periods demanded by the common law and they can be overridden by an express provision in the lease as to the period of notice. A term in the lease may say the notice period should be shorter or longer than the common law period. For example, if in a quarterly periodic tenancy a term states that the tenancy is terminable upon four weeks notice then four weeks will be sufficient.

For residential tenancies s5(1) of the Protection From Eviction Act 1977 lays down a minimum period of four weeks notice. By virtue of s5(1A), these provisions also apply to licences but they will not apply to certain categories of tenancies and licences excluded by s5(1B) (see 19.23). The minimum period cannot be overridden by an express term in the lease and applies to both landlords and tenants. Thus, if an express term states that only two weeks notice is required to terminate a monthly tenancy, this term will not be effective and to terminate the tenancy validly the landlord will have to give four weeks notice."

10.41 - 10.42

"A periodic tenancy is strictly speaking terminable only at one point in time in each rental period - at midnight on the day before the anniversary of the start of the tenancy. Thus a weekly tenancy that started on Monday is terminable only at midnight on Sunday; a monthly tenancy started on the first of the month is terminable only at midnight on the last day of the month. Usually the tenancy agreement will specify the date upon which the tenancy began. However if it is not clear when the tenancy started the timing will be calculated from the date on which the rent is paid. If a dispute arises over the commencement date of the tenancy it will up to the party seeking to serve notice to establish the commencement date.

The common law, however, permits a little latitude with regard to the date upon which the notice is stated to expire. A notice to quit will be valid so long as it is expressed to expire either on the same day on which the tenancy commenced (or on which rent is payable), or upon the preceding day (Newman v Slade [1926] 2 KB 328, Harley v Calder (1989) 21 HLR 214, [1989] 1 EGLR 88, CA)."

10.37 - 10.38

Lordofmyland
09-11-2005, 14:47 PM
Daytona, Im just curious, Ive been using these forums for many months now, and whilst there is some varied points of view and discussion (that is what a forum is for) in the main the advise given is excellent and helpfull. Why is that you feel the need to sling mud at others who are only trying to help? If you have information that could help, why not just post it and keep your nasty comments to your self?

Just wondering

Energise
09-11-2005, 14:48 PM
)These are the notice periods demanded by the common law and they can be overridden by an express provision in the lease as to the period of notice. A term in the lease may say the notice period should be shorter or longer than the common law period. For example, if in a quarterly periodic tenancy a term states that the tenancy is terminable upon four weeks notice then four weeks will be sufficient.


But this does not apply to a Statutory Periodic Agreement which is what Joel is in.

Jennifer_M
09-11-2005, 14:57 PM
Joel, I'm not surprised that you're confused, given the different information and lack of attributable sources

Thank god you're here to save the day. What would this forum do without you hey ?

RichieP
09-11-2005, 16:14 PM
http://www.orrp.com/smf/Smileys/orrp/1-picture6.gif I think the smiley list needs updating to add a special smug one for Daytona

mjpl
09-11-2005, 16:52 PM
This issue has come up before and has been addressed to various specialist property law firms. The common consensus has been that there is nothing in statute dictating when a tenant's notice should be served nor when it should terminate. Simply that it should amount to a rental period.

dazalock
09-11-2005, 17:03 PM
Seems Mr Daytona has pretty much said* what every one else has said but in a protracted and confusing way.

Way to go!

(* should read "copy and pasted from his manual")

MrShed
09-11-2005, 19:21 PM
Hear hear lordofmyland, well said. It seems that Mr Daytona has a serious habit of not being able to bite his tongue prior to slagging off others well meaning intentions....look at some of his previous posts!

Daytona
10-11-2005, 12:38 PM
But this does not apply to a Statutory Periodic Agreement which is what Joel is in.

Do you have any reliable source to back that up ? As mjpl said there is nothing in statute to define tenants notice in an SPT (all implied or contractual notice period terms during a fixed period are canceled by the HA88 s(5)1 once it lapses into an SPT). Therefore the underlying common law prevails.

Energise
10-11-2005, 13:18 PM
Do you have any reliable source to back that up ? As mjpl said there is nothing in statute to define tenants notice in an SPT (all implied or contractual notice period terms during a fixed period are canceled by the HA88 s(5)1 once it lapses into an SPT). Therefore the underlying common law prevails.

"These are the notice periods demanded by the common law and they can be overridden by an express provision in the lease as to the period of notice."


HA 1988 (5)(3)(e)
under which, subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy.

(further further down in your quote it then says the opposite.)

Daytona
10-11-2005, 13:33 PM
HA 1988 (5)(3)(e)

Sorry - I got the incorrect subsection when I quoted 5(1)


(further further down in your quote it then says the opposite.)

Having re-read it, I don't follow - can you quote it ?

Energise
10-11-2005, 13:56 PM
Sorry - I got the incorrect subsection when I quoted 5(1)
I knew what you meant :)

Quote 1 paragraph 1
"These are the notice periods demanded by the common law and they can be overridden by an express provision in the lease as to the period of notice."

Quote 1 paragraph 2
"The minimum period cannot be overridden by an express term in the lease and applies to both landlords and tenants"

Daytona
10-11-2005, 15:53 PM
I knew what you meant :)

Quote 1 paragraph 1
"These are the notice periods demanded by the common law and they can be overridden by an express provision in the lease as to the period of notice."

Quote 1 paragraph 2
"The minimum period cannot be overridden by an express term in the lease and applies to both landlords and tenants"

I don't see the contradiction.

Q1P1 Says that contract law overrides common law.

Q1P2 Says that statute law (in this case PE77) overrides contract law.

Energise
10-11-2005, 16:19 PM
I don't see the contradiction.

Q1P1 Says that contract law overrides common law.

It cant because any clause in the contract regards to notice is void on the creation of the SPT, HA 1988 (5)(3)(e)

Daytona
11-11-2005, 11:34 AM
The text I quoted was in the section related to notice periods for periodic tenancies, so the comment doesn't apply to SPT but will apply to CPT.

Energise
11-11-2005, 12:17 PM
The text I quoted was in the section related to notice periods for periodic tenancies, so the comment doesn't apply to SPT but will apply to CPT.

That's pretty much what I said, and no mention of which was in your post rendering it misleading.

PaulF
11-11-2005, 15:43 PM
There are far too many arguments and counter-arguments on this thread due to lack of absorbtion of the content, but if you read, read and read again (because most of you are not!) the extracts from the two barristers posted by Daytona and the one posted by Energise? from Pain Smith's site, you will start to understand they are both correct and very logical.

As far as the first post is concerned, the first paragraph ralates to common law and commercial type tenancies and not AST's but the second paragraph does. Also the one from Pain Smith states that "if provisions within an AST exists to determine a fixed term AST........" (perhaps not the exact words but you get the drift!) then there is no requirement for the tenant to give Notice if the judge is made aware of Section 5 if the tenancy becomes periodic, which means you should not put in any provision as to how to determine the fixed term within your tenancy agreement!. A provision to determine the agreement if the tenancy becomes periodic is an entirely different matter.

When the barristers/solicitors are referring to a Notice to Quit this is to determine an tenancy agreement other than an AST, which requires a Notice of Possession under S.21 or S.8, or an Assured Tenancy which requires a Notice under S.8 for which Grounds are restricted to tenancy breaches.

Do you all understand now?