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View Full Version : T wants to stay 3 weeks after fixed term ends



westminster
13-02-2010, 14:13 PM
(AST England/Wales, fixed term ends late Feb 2010, deposit protected).

T gave notice 2 months ago that she would be leaving at the end of the fixed term later this month (I didn't issue a s.21). Yesterday, T asked if she could stay another 3 weeks beyond the end of the fixed term. As agent still hasn't found a replacement tenant, this suits me fine. T has been there 18 months, pays a high rent, and has been a model tenant.

Agent is talking of referring this to their 'renewals' department for these extra 3 weeks. I don't think this is necessary, and all T has to do is give me written notice that she's leaving on this later date. I have no doubts she will keep her word and move out then. Also, it seems rather a performance to issue a renewal for 3 weeks and then have to re-protect the deposit for this new tenancy.

I've since been pondering the strict legalities.

In this PainSmith blog post about the Distress for Rent Act 1737, it says "Where a tenant has given notice to quit, either under a break clause or in relation to a periodic tenancy, that notice is binding on the tenant even if it is defective and it can only be withdrawn or rescinded with the consent of the landlord". (Quoted from here (http://painsmith.wordpress.com/2009/11/22/tenants-notices-to-quit-holding-over-and-double-rent/))

But I'm giving my consent, so that's not the case here.

So, having accepted the amended notice, the tenancy would now end at the end of the tenant's amended notice, and if T didn't move out I could (in theory, anyway) go for the double rent under the 1737 Act. Whereas if I issued a 3 week renewal, this would surely have the effect of 'voiding' the tenant's notice, and mean that if she didn't move out, a periodic tenancy would instead arise.

My question is essentially, do you agree the agent would be incorrect to insist on issuing a renewal contract for the 3 weeks, as I just can't see what extra 'protection' or advantage there is in the circumstances? (BTW, I don't pay LA extra admin fees for paperwork, just a % of rent. T pays LA £70 + VAT for 'renewals' however).

Ericthelobster
13-02-2010, 14:39 PM
Surely this just another case of the agent wanting their commission?

Provided you and the tenant trust each other (ie she'll move out in 3 weeks, and you won't try to charge her double rent), I don't see any problem. What's the worst case scenario - T will change her mind and want to stay longer, and reset the 2-months' notice clock (and if so, do you care?)

Preston
13-02-2010, 14:52 PM
I've since been pondering the strict legalities.

In this PainSmith blog post about the Distress for Rent Act 1737, it says "Where a tenant has given notice to quit, either under a break clause or in relation to a periodic tenancy, that notice is binding on the tenant even if it is defective and it can only be withdrawn or rescinded with the consent of the landlord". (Quoted from here (http://painsmith.wordpress.com/2009/11/22/tenants-notices-to-quit-holding-over-and-double-rent/))

This isn't true in all circumstances.



But I'm giving my consent, so that's not the case here.

So, having accepted the amended notice, the tenancy would now end at the end of the tenant's amended notice, and if T didn't move out I could (in theory, anyway) go for the double rent under the 1737 Act.


I'd be interested to hear from anyone who has enforced this successfully in the courts.



My question is essentially, do you agree the agent would be incorrect to insist on issuing a renewal contract for the 3 weeks, as I just can't see what extra 'protection' or advantage there is in the circumstances? (BTW, I don't pay LA extra admin fees for paperwork, just a % of rent. T pays LA £70 + VAT for 'renewals' however).

I agree, there is no extra protection for you.

Lawcruncher
13-02-2010, 15:07 PM
I refrain from commenting on the Pain Smith quote and on what the law actually is. The matter is very easily solved by you and the tenant signing something along the following lines:

By this Deed dated [insert date] [insert name of landlord] and [insert name of tenant] agree that notwithstanding the service of any notice by [insert name of tenant] intended to bring to an end the tenancy of [insert address of property] that the fixed term created by an agreement dated [insert date of agreement] is extended to and includes [insert agreed termination date]. It is also agreed that any requirement in the agreement for [insert name of tenant] to serve notice bringing to an end the fixed term created by the agreement or to give notice of an intention to vacate the property is deemed to have been complied to the effect that such notice expires on [insert agreed termination date].

Signed as a deed by
[insert name of landlord]
in the presence of:

Witness's signature:
Witness's full name:
Witness's address:



Signed as a deed by
[insert name of tenant]
in the presence of:

Witness's signature:
Witness's full name:
Witness's address:


[To be executed in duplicate, each party retaining a copy]

The inclusion of references to notices is not probably necessary, but avoids argument.

If the above is signed and the tenant leaves on or before the agreed date the tenancy will not continue beyond the agreed date.

westminster
13-02-2010, 18:28 PM
Surely this just another case of the agent wanting their commission?)
Yes, in all likelihood. And you are quite right, I've no objections to the tenant staying on as long as she wants, much easier than installing a new tenant.


I agree, there is no extra protection for you.Thanks for the feedback. There seems to be a lot about the theory of the 1737 Act but nothing in the way of actual cases. I'd be prepared to have a go if the situation came up where the tenant was actively messing me around by holding over - say if I had new tenants lined up (and assuming this type of case can be allocated to the small claims track if it's less than £5K).

westminster
13-02-2010, 18:47 PM
The matter is very easily solved by you and the tenant signing something along the following lines:
Thank you LC. Four questions:

1. As it's a Deed, I take it that the agent could not insist on dealing with this on my behalf (and charging T) unless they have a qualified lawyer in the renewals department to do it (which is possible, as it's a large London firm)?

2. In the more likely event that I'm the one who deals with it, can I just post off two signed/witnessed copies to T and ask her to sign/witness one and return it to me, i.e. the parties do not have to sign in the presence of each other, just in front of their own witness?

3. As the Deed would merely alter the termination date of the existing fixed term contract, I assume this does not create a new tenancy requiring re-protection of deposit?

4. The Landlord is a limited company (of which I am sole director). Does this affect anything in terms of signing the Deed, other than noting that I 'westminster' am signing as Director of XXX Ltd on behalf of XXX Ltd?

westminster
16-03-2010, 19:38 PM
@lawcruncher,

Well, I extended the tenancy with the Deed as you suggested. The agent re-protected the deposit for the extra three weeks (I didn't ask them to, and not sure it was necessary as I wasn't creating a new tenancy).

Tenancy was due to end this week, but T now wants to extend again. I've agreed.

But I am not sure whether I can use the same extension by Deed method again, given that the first Deed firmly ends the tenancy.

I could of course ask T to destroy the first Deed, but what's the worst case scenario if (unknown to me) she didn't do as requested, and a second Deed was executed? Or would the second Deed automatically cancel the first Deed?

Lawcruncher
16-03-2010, 20:09 PM
Looks like I missed your post 6. :(


But I am not sure whether I can use the same extension by Deed method again, given that the first Deed firmly ends the tenancy.

Actually it does not end the tenancy. It just extended it.


I could of course ask T to destroy the first Deed, but what's the worst case scenario if (unknown to me) she didn't do as requested, and a second Deed was executed? Or would the second Deed automatically cancel the first Deed?

Destroying a deed has no effect apart from destroying the physical evidence. The deed lives on! A deed can only be revoked by another deed. Revocation is not needed. Just another deed. Like this one:

By this Deed dated [insert date] [insert name of landlord] and [insert name of tenant] agree that the fixed term tenancy of [insert address of property] created by an agreement dated [insert date of agreement] and extended by a deed dated [insert date of deed] is further extended to and includes [insert agreed termination date]. It is also agreed that any requirement in the agreement for [insert name of tenant] to serve notice bringing to an end the fixed term created by the agreement as extended or to give notice of an intention to vacate the property is deemed to have been complied to the effect that such notice expires on [insert agreed termination date].

westminster
16-03-2010, 20:12 PM
Thank you so much, lawcruncher. You're a star!