View Full Version : Tenant said they will not leave at end of contract
30-03-2010, 16:26 PM
Please can somebody offer me some advice.
I have been renting a property to a tenant for 18months and in a couple of weeks the tenancy period is set expire.
The value of the agreement is over 25k and as such is not an AST.
I was hoping someone could advise me of the best course of action given I have another tenant lined up to move in the day after he was supposed to leave. The new tenant paying much more money and can i clam back the income lost?
(I have been told to put in a Notice to Quit today but am now aware that i should allow 30 days from this notice even though the tenancy expires prior; though this doesn't help me for the moment).
Any advice would be much appreciated.
Ps. I fail to understand the point of a "tenancy period" when it does not have to be adhered to.
Many many thanks,
30-03-2010, 18:07 PM
What you have here is a bare contractual tenancy.
What does it say in the tenancy agreement with regard to notice, if there is nothing mentioned then the tenancy expires on the last day of the tenancy agreement.
If however you accept rent after this day then the tenancy become periodic and you must give one months notice if the rent is monthly.
If there is provision for notice then you should follow this and I would assume that if you give notice to quit within the fixed term, to expire outside the fixed term then a straight notice period is all that is required, so if there is provision for notice in your agreement of say one month then this notice would expire one month from the date it is served and not one month from the end of the fixed term.
30-03-2010, 18:15 PM
If the tenancy is not an AST then it ends when the fixed term expires. If the tenant does not leave when it ends you do not need to serve a notice to quit. You can immediately apply to the court for possession. You must not accept any rent for any period after the expiry of the fixed term. If you do it will create a periodic tenancy that will have to be ended by notice to quit. Instead of accepting rent you claim mesne profits (occupation charge) in the court application.
30-03-2010, 18:52 PM
Thank you for the promt reply.
I called a couple of solicitor firms in between and both advised (without seeing the contract) that even if it is not an AST then the equivalent of a notice fo quit must be sent at least 1 month in advance.
I hope they are wrong and you are right else what is the point of tenancy duration anyway :(
If there is such a form can you point me to it also.
Thanking you in advance,
30-03-2010, 19:06 PM
Hi and thanks for replying.
The agreement reads as follows "TENANCY AGREEMENT for letting on a NON HOUSING ACT TENANCY" and there is not notice period required, except if either party wished to exercise break clause earlier to natural termination.
So does that mean i can start court proceedings in a couple of weeks when the tenancy period comes to a natural end?
I was advised by a couple of other solicitors I need to have given a type of notice to quit even though its not an AST else i cannot go via court immediately.
(18 months and over 25k with no clause for notice unless if subject to exercising break clause)
Please please help me clarify.
30-03-2010, 20:35 PM
I thought Id try to clear up my questions a bit.
The contract does not mention AST anywhere but it does say "TENANCY AGREEMENT for letting on a NON HOUSING ACT TENANCY".
- So does this means i can assume it is a "bare contractual tenancy" ? There is no provision for notice in the contract except where early termination is sough via break clause.
- And given the LL has not accepted any rent past the natural termination date then no "Notice to Quit" type notification is required?
- The T has expressed they will not leave on the required date but that they will continue to pay direct to Agent account who i guess cannot stop the incoming transfer. The LL does not want this since they have a better offer and the existing T will not match it.
Based on this what would be your best advise? How long can eviction take and can the LL claim the differential lost between one T and the next.
I just dont understand how the law would allow for such a thing to happen. Why is the LL not simpy entitled to evict the T on the exact end day of the tenancy agreement.
I look forward to your replies and appreciate your advice very much.
01-04-2010, 15:06 PM
No-one can tell in advance what will actually happen on the day that T is obliged to vacate. Wait and see; why panic early?
01-04-2010, 18:39 PM
Thanks for the reply.
I know for sure the T is not vacating because they have gone on holiday and aren't due back till after the termination date. They have also said they do not intend to move out until they find a place when they are back. (There is no clause referring to any notice requirement before natural termination).
It appears a lot of solicitors and independent services do not fully understand the law surrounding this since they offer varying advice.
Some say notice to quit must be given before applying to the courts whilst some say this is not so. And to complicate matters further some say to continue accepting rents after the term ends whilst others say not to if court action is to begin immediately without any notice period. Some say periodic tenancy will begin automatically and others say it does not if no rent is accepted.
01-04-2010, 23:29 PM
The agreement reads as follows "TENANCY AGREEMENT for letting on a NON HOUSING ACT TENANCY"
This is irrelevant. Either the tenancy is an assured tenancy or it is not - and that depends solely on whether the statutory conditions are fulfilled and not what you say in the agreement.
A notice to quit only applies to periodic tenancies. You cannot serve a notice to quit to bring a fixed term to an end because it ends when it expires, whether the date of expiry is the term date or the date on which a notice exercising a right to break expires.
A periodic tenancy will only arise if it is agreed or if rent is demanded or accepted in respect of any period after the term date. Until such a tenancy arises no notice can be served terminating it - you cannot serve a notice terminating something that does not exist.
I think you need to go back to the solicitors whose advice you sought and ask them to think again.
02-04-2010, 01:08 AM
Firstly thank you as always for your help :)
I fully understand your logic and im sure at this point the agreement is not an assured tenancy and there are also no clauses requiring notice upon natural termination. And as long as no rent is agreed, demanded or accepted, then a periodic tenancy cannot not arise.
So in theory this means I can apply to the courts for a possession order the very next day of the tenancy expiring? and if correctly applied for, and without any surprises, the application should be successful?
The problem is almost all of the people i have approached so far dont agree.
It sounds like they do not understand the difference between an Assured Tenancy Agreement and a Common Law Tenancy Agreement (Bare Contractual Tenancy Agreement).
Those who do supposedly understand, but still insist on notice of sort being served, claim a periodic tenancy will automatically follow whether money is accepted or not.
Then there are a couple saying that irrespective of the agreement not being assured, the court would not be happy that no formal notice was given and as such throw out the case.
With each of them I have argued your points and my legal research agrees with you entirely. Sadly, the only person I could get to agree with this approach was a firm recommended by Expert Paul on these forums.
Either there is a big mistake at hand here or 90% of people offering eviction services are uneducated and are simply following a flow chart that doesn't cater for non assured agreements; leading them to a section 21 notice!
Thanking you in advance,
02-04-2010, 12:53 PM
Unless there is something so obvious here that I am completely missing it, I feel confident I am right.
I quote from Introduction to Land Law by J.G.Riddall (1983):
A lease for a fixed period ends automatically when the period expires. There is thus no need for the landlord to give the tenant notice to quit in order to terminate the tenancy.
We can immediately go on to say that statute has intervened in different ways for some types of tenancy, by providing, if certain conditions are met, for the tenancy to continue or for a periodic tenancy to arise, and for procedures that need to be followed for the tenancy to be brought to an end. If there is any such statutory intervention that applies to short term residential tenancies that are not assured tenancies or Rent Act tenancies it has escaped my notice.
I think you have hit the nail on the head when you say that everyone is so used to dealing with ASTs that they find it difficult to believe that the same procedure cannot apply to non-ASTs.
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