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View Full Version : How much notice from T to L during periodic tenancy?



djkarl
29-06-2009, 19:20 PM
We have been renting a property since 1st of June 2008. We originally signed a 6 month agreement; we were offered another 6 month agreement in December but declined stating we would be happy with a periodic agreement.

One of the clauses in the original agreement is that we would have to give 2 months notice should we wish to move. I've spoken to the LL and she insists it is two months notice. We have found a new house and needed to give notice, here is the relevant section from the letter i give her

We are now on a statutory periodic tenancy as our assured short hold tenancy has ended lapsed we hereby give one months notice.

The last day of our tenancy will be 31st July 2009. We will be available on that date after 7pm to complete a check-out inspection. We are however flexible on the date and time of the checkout.

She was not happy and quite insistant that it is 2 months notice and she will hold us to this. She has just delivered a letter, please find relevant section below.

I have today consulted with my solicitor who agrees that it is two months as per the contract which you signed last year. I am enclosing a copy of the page covering the termination of the contract, incase you do not have your contract to hand. 7.1, 7.2 and 7.3 state very clearly the terms under which the contract may be terminated. 7.1 states that the landlord or tenant may terminate the tenancy by giving not less than two months written notice, such notice not to expire earlier than the end of the fixed term of the tenancy and 7.2 explains very clearly that if you want to leave the property at the end of the six month period, you must give notice on the forth month of tenancy.

If no such notice is given by either party then the contract continues under the same terms and conditions. The contract does not expire at the end of the six months if no notice is given.

The whole first paragraph is strange as she's talking about the contract period and the last sentence just seems like utter rubbish.

mind the gap
29-06-2009, 19:36 PM
No, she - and her solicitor - are wrong.

As a tenant on a periodic tenancy, you only need give one month's notice to expire on the day before a rent payment day. The LL on the other hand must give two months' notice; that is probably where she has got 'two months' from.

The bits she is quoting seem to apply to the fixed term contract anyway (still wrong, unless she is referring to the exercise of a break clause - it's not clear - T can walk away with no notice at all on the last day of a fixed term!)

Any clause in the TA which attempts to override this statutory provision is unenforceable and can be ignored.

westminster
29-06-2009, 19:39 PM
You are quite right, you need only give one month's notice. Your fixed term expired and its notice provisions do not carry through to the (new) periodic tenancy (unless agreed otherwise).

http://www.landlordzone.co.uk/notice_to_quit.htm

Sorry, don't know which bit of which Housing Act you need to quote - but you only need it if LL goes on to issue a claim.

The solicitor sounds a bit hopeless if he/she doesn't know this - though it's possible LL didn't describe the situation properly over the phone, just quoted from the fixed term contract.

Is your deposit protected in a scheme?

mind the gap
29-06-2009, 19:42 PM
Great minds...:)

westminster
29-06-2009, 19:54 PM
Great minds...:)

I know, lol......you always get there before me, though!

djkarl
29-06-2009, 20:21 PM
Many thanks for your quick responses everyone, sorry if you've been asked this question over and over again.

I'll get to work penning a polite but firm reply to her, i assume the below is the relevant section of the Housing Act i need to point her to?

Point her to Section 5 (3) (e) of the Housing Act 1988:

http://www.opsi.gov.uk/Acts/acts1988..._19880050_en_2

(2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—

(a) an order of the court, or

(b) a surrender or other action on the part of the tenant,

then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section.

(3) The periodic tenancy referred to in subsection (2) above is one—

(a) taking effect in possession immediately on the coming to an end of the fixed term tenancy;

(b) deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the person who was then the tenant under that tenancy;

(c) under which the premises which are let are the same dwelling-house as was let under the fixed term tenancy;

(d) under which the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy; and

(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.

Lawcruncher
29-06-2009, 20:46 PM
http://www.landlordzone.co.uk/notice_to_quit.htm

The information given there is incorrect in a very important detail. A tenant's notice to quit must expire at the end of a complete period of the tenancy, not at the end of a rent period (though the two may be the same). The notice may expire on the last day of tenancy period or the first day of tenancy period.

Example:

A tenancy starts on 5th January 2008 and ends on 15th July 2008. The rent is payable on the 5th of the month. The statutory periodic tenancy starts on 16th July 2008. The periods of the tenancy are therefore from the 16th of the month to the 15th of the month with rent payable on the 5th of the month. The tenant may give one month's notice to quit to end the tenancy on either the 15th or the 16th of the month. A notice terminating the tenancy on any other day of the month is invalid.

A similar observation may be made in respect of the comments on the date on which a section 21 notice expires.

mind the gap
29-06-2009, 20:56 PM
Thank you for highlighting that.

However, it is correct to assume the distinction is not relevant in OP's case, since the tenancy period runs from 1st-31st of each month and she has given notice to expire on 31st July?

Lawcruncher
29-06-2009, 21:24 PM
However, it is correct to assume the distinction is not relevant in OP's case, since the tenancy period runs from 1st-31st of each month and she has given notice to expire on 31st July?

Probably. A possible snagette is the wording of the notice:

We are now on a statutory periodic tenancy as our assured short hold tenancy has ended lapsed we hereby give one months notice.

The last day of our tenancy will be 31st July 2009. We will be available on that date after 7pm to complete a check-out inspection. We are however flexible on the date and time of the checkout.

"We hereby give one months notice" means "We hereby give one months notice from the date of this notice" and so if the notice was dated, say, 25th June, the notice will not end on 31st July. However, the words "The last day of our tenancy will be 31st July 2009" probably save it since taken over all the intention is clear.

When serving a notice that needs to take effect on a specified date it is wise to refer to the date rather than specifying the period of notice and, of course, you should serve the notice in good time. There is also some failsafe wording you can add that kicks in if you get the date wrong or serve the notice late; I cannot quite remember how it goes.

When drafting or approving notice provisions that require the notice to take effect on a specified date it should be ensured that the reference is always to "at least [period]'s notice". Otherwise you will be in the tricky position of having to serve the notice on exactly the right date

Preston
29-06-2009, 22:12 PM
There is also some failsafe wording you can add that kicks in if you get the date wrong or serve the notice late; I cannot quite remember how it goes.


A typical "saving clause" reads something like this:

“ ... on [date] or at the end of the period of the tenancy which will end next after the expiry of one month [in the case of a monthly tenancy] from the service upon you of this notice”.

David TFP
30-06-2009, 10:12 AM
The information given there is incorrect in a very important detail. A tenant's notice to quit must expire at the end of a complete period of the tenancy, not at the end of a rent period (though the two may be the same). The notice may expire on the last day of tenancy period or the first day of tenancy period.

Example:

A tenancy starts on 5th January 2008 and ends on 15th July 2008. The rent is payable on the 5th of the month. The statutory periodic tenancy starts on 16th July 2008. The periods of the tenancy are therefore from the 16th of the month to the 15th of the month with rent payable on the 5th of the month. The tenant may give one month's notice to quit to end the tenancy on either the 15th or the 16th of the month. A notice terminating the tenancy on any other day of the month is invalid.

A similar observation may be made in respect of the comments on the date on which a section 21 notice expires.

Specifically the last point made about the section 21 notice may be misleading for that notice.

Firstly in the Church Commissioners v Meya (Court of Appeal) they held the periods of the statutory periodic tenancy were the periods for which rent was "last paid" during the fixed term. Whilst the point under argument was the length of the notice, the start and end date could be implied too.

Secondly the comment about ending the first or last day of the period does not apply to Section 21 (McDonald v Fernandez discussed this point), it has to be the last day.

jeffrey
30-06-2009, 11:08 AM
Specifically the last point made about the section 21 notice may be misleading for that notice.

Firstly in the Church Commissioners v Meya (Court of Appeal) they held the periods of the statutory periodic tenancy were the periods for which rent was "last paid" during the fixed term. Whilst the point under argument was the length of the notice, the start and end date could be implied too.

Secondly the comment about ending the first or last day of the period does not apply to Section 21 (McDonald v Fernandez discussed this point), it has to be the last day.
That's a very good and informative post, if I may say so.

1. Yes. If the rent period is monthly during a fixed term tenancy, that remains true during the statutory continuation tenancy- which begins on the day after the fixed term expires, irrespective of the day of the month on which rent falls due.

2. Yes, again. The s.21 Notice period has to end when a tenancy period ends- not one day later.

djkarl
30-06-2009, 11:09 AM
I've had to put her down as my current LL on my form for the new house. I did say i would help her in finding new tennants, i think she is pushing her luck.

Homelet contacted me saying she isnt answering the phone, i sent her a text message advising they were having problems getting in touch with her and would she prefer to be emailed.

Her response is below, fair enough about the rent she is only wanting to be certain, but we've never been late with a payment yet, it's the 'booked in' comment that is annoying.


‘i have 2 viewings booked in on Thursday at 1.15 & 2.15. I will call homelet as soon as your rent is in tomorrow’

Lawcruncher
30-06-2009, 14:29 PM
A typical "saving clause" reads something like this:

“ ... on [date] or at the end of the period of the tenancy which will end next after the expiry of one month [in the case of a monthly tenancy] from the service upon you of this notice”.

That's it! Thank you.

Mrs Jones
30-06-2009, 15:11 PM
it's the 'booked in' comment that is annoying.

‘i have 2 viewings booked in on Thursday at 1.15 & 2.15. I will call homelet as soon as your rent is in tomorrow’

You could always tell her the times are not convenient to you, if you want to be awkward - but it is probably in your best interests to just get it all over with!!

djkarl
01-07-2009, 06:55 AM
I've sent her a message advising i am happy for the viewings to go ahead once Homelet confirm a reference has been received from her.

I await a nasty reply from her

Lawcruncher
01-07-2009, 07:21 AM
Specifically the last point made about the section 21 notice may be misleading for that notice.

Firstly in the Church Commissioners v Meya (Court of Appeal) they held the periods of the statutory periodic tenancy were the periods for which rent was "last paid" during the fixed term. Whilst the point under argument was the length of the notice, the start and end date could be implied too.

Secondly the comment about ending the first or last day of the period does not apply to Section 21 (McDonald v Fernandez discussed this point), it has to be the last day.

As to the first point I cannot agree. The first day of the statutory periodic tenancy (and therefore the first day of the first period) is the day after the fixed term expires. All subsequent periods must follow on accordingly. I was assured by a member of Falcon Chambers that there is no doubt that this must be the case. (Incidentally I think you meant "last payable" and not "last paid".)

As to the second point you are of course quite right. A serious case of inattention on my part.

David TFP
01-07-2009, 08:08 AM
Law Cruncher wrote

As to the first point I cannot agree. The first day of the statutory periodic tenancy (and therefore the first day of the first period) is the day after the fixed term expires. All subsequent periods must follow on accordingly. I was assured by a member of Falcon Chambers that there is no doubt that this must be the case. (Incidentally I think you meant "last payable" and not "last paid".)

I admitted that the start and end date were not the point of the case, and sadly till we get a similar case going to Court of Appeal it will surely all remain our opinions. The savings clause is the obvious answer, although the problem can also be completely avoided by ensuring the fixed term expires on the last day of a payment period. Also, and a general point, care needs to taken in referring to when the rent is paid as there is no requirement for the payment date and the period for rent is paid to be the same. For example, it is quite permissible for the rent to be paid for each calendar month, but for it to be due to be paid on the 7th of each month.

I agree about last payable/last paid

djkarl
18-08-2009, 09:21 AM
Hello, this is still dragging on. We have moved out and been through the check out procedure, she asked me to sign the below and got rather upset when i refused to sign it as it read

As I told you verbally when you delivered your notice to me on Saturday 27th of June and confirmed again in wiring in my letter June 29 2009, the notice period you are required to give me per your contract is 2 months not 1. I enclosed a copy of the page covering the termination of your contract in case you had lost your contract. This cover points 7.1, 7. And 7.3. My solicitor agreed that your contract ‘rolls over’ under the same terms and conditions of the contract signed. If that were not the case then one could claim that all other terms and conditions of the contract no longer apply, including for example, the amount of the rent.

7.1 states that the landlord or tenant may terminate the tenancy by giving not less than two months written notice, such notice not to expire earlier than the end of the fixed term of the tenancy and 7.2 explains very clearly that if you want to leave the property at the end of the six month period, you must give your notice on the forth month of the tenancy.
7.3 states that ‘if the tenancy is terminated by the tenant, in an way, in breach of this agreement the shall pay the full cost of re-letting the premises and any loss of rent incurred due to tenants actions’. As new tenants have been found, but no contract has as of yet been signed, it is due to be signed on Monday, August 3rd, I am claiming my estate agents cost for finding the new tenant which are £262.50 plus VAT, giving a total of £301.88. I am also claiming 2 days rent which has been lost as the new tenant won’t move in till August 3. This is £36.16 and has been calculated as follows: £550 x 12 = £6,600 annual rent, divided by 365 days = £18.08 per day, times 2 days= £36.16. Should the new tenant, for any reason not go ahead and sign the contract on Monday then I will claim the full month’s rent of £550 which I am entitled to under your contract.

As you did not give me the 2 months notice required and it is now holiday season, I felt that it was necessary to reduce the rent by £25 a month in order to attract new tenants quickly. Had you given me the 2 months notice required then I would not have felt compelled to reduce my rent at all. My solicitor thinks I should claim for this too (6 months contact x £25 lost rent =£150). However, out of goodwill, if we all agree on my being paid £338.04 from the deposit I will not make a claim for this.

Should we not agree on the above and it has to be decided by the DPS, then I will for the 2 days lost rent, my estate agents fees to re-let the property, the £150 lost from reducing the rent in order to find new tenants quickly s well as any solicitors fees I may incur if I have to make a sworn declaration to be witnessed by my solicitor. This will be a total of £488.04 plus solicitors fees.

The case is now with the DPS ADR people .

Lawcruncher
24-08-2009, 22:49 PM
There can be no doubt that any provisions in a tenancy agreement for a fixed term that relate to giving notice to terminate the tenancy do not carry over to a statutory periodic tenancy since the Housing Act 1988 says this very clearly. Everything else that is said fails on that account.

Rodent1
24-08-2009, 23:08 PM
She should lose hands down ...but ADR are a law unto themselves...the upside is that apparently they find in favour of the T 96% of the time regardless !

She can then investigate sueing her solicitor for duff advice !