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Spongey
06-10-2011, 17:14 PM
Hi guys,

I have been looking online a lot and can’t find anything which directly relates to our case so am hoping you can help us a little.

We rented a house on a 6 month Fixed term AST, during fixed term we started going through the roles of buying a house. The landlord got wind of this through local gossip and when the AST fixed term expired demanded we agree to give 2 months notice. Initially we refused and he sent a section 21 notice by email which forced us to agree as we would of run the risk of been left with nowhere to live and having to start a new fixed term.

The house is now coming towards completion and I am wanting to know if the clause the landlord has written in pen on the bottom of our original ast is enforceable (both we and the landlord have signed the clause but as said before had no choice).

“As of ************ the contract is extended on a rolling basis with the tenants giving 2 months notice when wishing to end contract”

It is a standard AST which has come from National landlord association and has no mention of what happens after the fix term (in the original document). But has this new hand written signed clause now created a contractual periodic agreement?

We would happily give one month notice but feel a little hard done by the way in which we have been treated and if we can avoid giving 2 months notice we would like to know.

Additional we know our deposit is not protected (have checked with 3 agencies) and no moving in inventory was ever completed (if it was we never saw or signed it). Sounds a bit like they may not know what they are doing.

Thanks for your help

Spongey
06-10-2011, 17:17 PM
Should prob add we have tried to be good tenants rent paid on time house spotless and have even showed round prospective tenants for landlord.

Lawcruncher
09-10-2011, 14:01 PM
First, you really had no need to sign the addition to the contract since the section 21 notice did not operate to bring the tenancy to an end on its expiry. A landlord can only bring an AST to an end by obtaining a court order. In any event, since the deposit was not protected the notice was invalid. The lack of an inventory and your conduct as a tenant have no bearing on the issue.

However you did sign so let's look at what you signed:

“As of ************ the contract is extended on a rolling basis with the tenants giving 2 months notice when wishing to end contract”

This is the sort of amateur drafting which, on the face of it, looks fine but which on analysis can be shown to be defective and which raises all sorts of questions.

Strictly, a tenancy cannot be "extended". Either you grant a new one that carries on when the old one finishes or you grant a new one that replaces the old one. However, if the parties use the word "extend" it will not necessarily be fatal to their agreement.

However, we do have a problem as to whether anything which has come to an end can be extended.

"Rolling basis" is not a "term of art" that is a phrase with a fixed meaning like "periodic tenancy". I think though that we have to assume that "periodic tenancy" is what is meant. However, the draftsman has got himself into some real difficulty because he says "with the tenants giving 2 months notice". This implies that only the tenant may give notice. The grant of a periodic tenancy expressed to be determinable only by the tenant is void - see Centaploy Ltd v Matlodge Ltd.

There is therefore a good argument that the addition to the contract is of no effect and what you have is a statutory periodic tenancy which (assuming that under the agreement rent was paid monthly) you can end by giving a month's written notice expiring at the end of a tenancy period. Note that a tenancy period is not the same thing as a rent period. The first tenancy period started the day after the fixed term ended and the subsequent tenancy periods are calculated accordingly.

Spongey
09-10-2011, 15:53 PM
Thanks for your clarification that's really useful.

We only discovered the S21 was invalid after we had signed which was kind of annoying.

Thanks Again

bhaal
09-10-2011, 18:50 PM
In addition to lawcruncher's points I question if there is any consideration for your promise to give notice. The lack of such would make it unenforceable. Even if some consideration can be given this is almost certainly an unenforceable term under the Unfair Terms in Consumer Contract Regulations 1999. The nature of the way in which you were compelled to sign is quite clearly unfair and the term will therefore be void under the Regulations. Additional notice clauses have also been fingered by the OFT as examples of clauses in tenancy agreements which are void due to the Regulations.

theartfullodger
09-10-2011, 19:05 PM
And when the Landlord shouts & screams that the clause is entirely water-tight, point him at this thread..

Perhaps if he followed this site he might learn something to his advantage...

Cheers!

Lawcruncher
09-10-2011, 20:11 PM
In addition to lawcruncher's points I question if there is any consideration for your promise to give notice.

Whilst agreeing that the enforcement of variations and side letters can be problematic if not supported by consideration or made by deed, what we have is an agreement which purports to "extend" the term. To the extent that it works I do not think it is unenforceable for lack of consideration.

bhaal
09-10-2011, 22:43 PM
But the tenants would have been entitled to a rolling month-by-month tenancy anyway. In fact that is what they already had. It's not good consideration to give someone what they've got a right to anyway.

mariner
10-10-2011, 01:50 AM
bhaal, I to am trying to translate LCs reply. I think you are confusing the varied definnitions of 'consideratiom'
1thoughtfulness
2contractual payment or reward received in exchange for promise/undertaking ie no money was paid by T to LL for this 'extension'

"when the AST fixed term expired demanded we agree to give 2 months notice. Initially we refused and he sent a section 21 notice by email which forced us to agree as we would of run the risk of been left with nowhere to live and having to start a new fixed term."

IMO T did have a choice, sign or seek futher prof opinion before signing.
OP signed through ignorance (in the same manner I am ignorant of many lifetime things). He thought s21 was notice to quit on expiry date. IT IS NOT and legal eviction could have taken months. He was also unaware that after expiry of fixed term he had a SPT with more favourable specified notice period. He did not want to sign a new AST with min fixed term liability so he accepted the 'extension' clause as 2 month Notice was better than fixed term liability. Equally the LL was ignorant when drafting the handwritten extension clause. Onlya CC Judge can decide.
CAVEAT EMPTOR - let the buyer be aware is still valid

Lawcruncher
10-10-2011, 08:09 AM
As of ************ the contract is extended on a rolling basis with the tenants giving 2 months notice when wishing to end contract

The intended effect of the above is to "extend" the tenancy. (As to whether it does - see above.) If it had been drafted correctly it would have been an agreement for a periodic tenancy. The tenant enjoying the premises and paying rent there would have been no failure of consideration.

On the other hand, suppose the agreement contained a tenant's break clause which required one month's notice and the following was added at the end:

The parties agree that the period of notice required by clause 17 is two months instead of one month

Assuming it was not executed as a deed, the agreement may fail for want of consideration.

I am no expert on this area of the law, but as I understand it where a variation to a contract is agreed and no consideration is expressed or it is not executed by deed:

1. If the variation benefits both parties it is enforceable. The mutual benefit is the consideration.

2. If the variation only benefits one party it is unenforceable unless the parties conduct themselves in such a way that it would be inequitable not to enforce it.

westminster
10-10-2011, 17:10 PM
We rented a house on a 6 month Fixed term AST, during fixed term we started going through the roles of buying a house. The landlord got wind of this through local gossip and when the AST fixed term expired demanded we agree to give 2 months notice. Initially we refused and he sent a section 21 notice by email which forced us to agree as we would of run the risk of been left with nowhere to live and having to start a new fixed term....

...
It is a standard AST which has come from National landlord association and has no mention of what happens after the fix term (in the original document).
Your main question has been answered by lawcruncher, but just to clarify a few other points.

If an AST tenant is in occupation at fixed term expiry, then a statutory periodic tenancy will automatically arise under section 5 Housing Act 1988 (unless, of course, LL/T have agreed a new fixed term, or the contract creates a contractual periodic tenancy following on from the fixed term).

It would seem that in your case a SPT did arise.

In addition, as has been pointed out, a s.21 notice is not a notice to quit; it does not end the tenancy at expiry nor does it oblige the T to vacate. It merely entitles the LL to apply for possession after notice expiry (if his notice is defective, as your LL's was because he has failed to protect the deposit, he will not obtain a possession order).

Assuming your current tenancy is a SPT, then you must give LL at least one month's notice to quit if you wish to unilaterally end the tenancy. Your notice must also expire at the end of a tenancy period. The tenancy periods begin the day after the fixed term expires, and their length is based on the frequency with which rent is payable, not the rent due date (though the two may coincide).

For example, if a T pays rent monthly, and has a six month fixed term which commenced 12th January, then on 12th July a statutory periodic tenancy will arise with tenancy periods running 12th - 11th of the month; in this example, if the T served notice on 22nd August, then the earliest his notice could expire would be 11th October.

Also note that your notice ends the tenancy at notice expiry, so you need to be 100% sure that you will have vacant possession of the property you are buying by that date.