Does a Tenant need to give notice on a (AST) which has become periodic? Would there be any difference if the tenancy was still in a fixed term?
An assured shorthold tenancy (AST) gives a tenant full security of tenure for a minimum period of 6 months regardless of the length of the tenancy agreement (contract). If the contract is less than six months, then the tenant can leave after the contracted term, but the landlord must wait until 6 months is up until he can seek possession.
If the tenancy contract term is longer than six months, (e.g. 12 months) the tenant must wait until the end of the term before leaving. The landlord must wait until the end of the contract term before he can seek possession using section 21, unless there has been a breach of contract, in which case one or more of the grounds under section 8of the Housing Act 1988 and 1996 can be used.
A tenant can leave at the end of the fixed term without giving any notice. If the landlord requires the tenant to leave at the end of the fixed term he must serve a s21 notice two months prior. The landlord can serve a fixed term s21 any time up to and including the last day of the fixed term.
Once the AST ends and automatically becomes periodic, the tenant must give a clear tenancy period’s notice in writing to the landlord – one month’s notice ending on the last day of a full tenancy term. The landlord, on the other hand, must give two clear tenancy periods’ notice to the tenant – 2 months ending on the last day of a full tenancy term, AFTER which date the landlord can pursue a possession claim.
If the tenant leaves a periodic AST early or without giving notice in writing, the landlord is entitled to rent to the end of what should have been the notice period. Dropping the keys through the landlord’s or the rental property letter box is not a surrender, merely an offer to the landlord to accept a surrender. Laine v Cadwallader is an appeal court test case which established beyond doubt some of these rules.
Laine -v- Cadwallader (2000) 33 HLR 397; (2000) 80 P & CR D44;  L & TR 8;  EWCA Civ 5562; (2001) 33 HLR 36
A tenancy was granted by a landlord as an assured shorthold tenancy for six months which was set at £390 “per calendar month payable every two months in advance”.
A clause in the agreement allowed the tenant to terminate the agreement with “at least one month’s written notice”.
The tenant left the accommodation, putting the keys through the landlord’s letterbox. The landlord (1) claimed the arrears of rent, plus (2) the cost of remedying some dilapidations damage done to the property and (3) four weeks’ rent in lieu of notice (this was not a full calendar month’s rent).
The claim for rent in lieu of notice was dismissed by the court. The landlord then appealed.
The appeal succeeded. The court discussed how the tenancy might be determined. Because of section 5(3)(e) of the Housing Act 1988 the clause in the agreement allowing the tenant to bring the agreement to an end by giving a month’s notice could not have effect while the agreement remained an assured shorthold tenancy.
For the tenant to terminate, the length of the notice to quit has to be “equal to at least a period of the tenancy and expiring at the end of the period of the tenancy”. That brought section 5(3)(d) into effect.
The appeal court held that there is an obligation on the tenant to serve notice to quit if he wishes unilaterally to determine a periodic tenancy.
The appeal ruling makes it clear the law requires that a tenant must give formal notice in writing to the landlord. The notice must expire on the last day of the tenancy period, and must be not less than one calendar month for a monthly tenancy or 4 weeks for a weekly tenancy.
The appeal court also ruled that delivery of the keys to the landlord (dropping through the letter box) does not constitute surrender of the tenancy unless the landlord accepts and agrees or acts in any way that implies he accepts the surrender. “The posting of the keys cannot have constituted more than an offer to surrender that the landlords were free to accept or reject”
The Court of Appeal awarded the landlord damages on all three counts, the tenants having defended their actions on the basis that having surrendered the keys, no further notice was required to leave the property.
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