How to interpret one clear calendar month’s notice?

by Readers Question

8:39 AM, 7th December 2016
About 2 years ago

How to interpret one clear calendar month’s notice?

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How to interpret one clear calendar month’s notice?

My tenant gave notice on 23 November. ( currently on periodic tenancy)Month
His lease period runs from 15th – 14th of each month.

I had presumed that he was required to give one clear tenancy period’s notice in writing (i.e. must end on the last day of a tenancy period) . In other words one calendar month from when he served his notice takes him to 24th December. However, since this is not the end of a rental period, he is required pay rent one last time on 15 December, and his tenancy would officially end on 14 January. Right?

BUT the following wording confuses me.

9.5.1 The Tenancy may be terminated at any time after the fixed Term by either party by serving one clear calendar month’s written notice upon the other, and in the case of the Landlord only such notice is to expire at the end of a rent period.” Does this mean my tenant’s calendar month’s notice does not need to expire at the end of a rent period?

In summary, how do I interpret the wording “one clear calendar months’ notice” combined with “and in the case of the Landlord only” as it pertains to my tenant?

Fiona



Comments

Stephen Smith

9:02 AM, 7th December 2016
About 2 years ago

Hi,

Basically yes, he is not required to give notice which expires at the end of a rent period.
The matter of the rent is separate and you would need to refer to the clauses concerning the rent.
Better to make an agreement for a part month rather than a dispute over amounts due since they will not want to pay for a large part of the month when the property is unoccupied.
Don't forget the leaving inventory!

Stephen

Mandy Thomson

10:20 AM, 7th December 2016
About 2 years ago

Hi Fiona

Firstly, what is acceptable is whatever you and your tenant are happy to agree on - even if the tenancy was in its fixed term.

However, the law is there for situations where landlord and tenant can't agree, and/or both parties need guidance, as in this case.

As Neither Spencer v Taylor nor the Deregulation Act or any other legislation has changed tenant's notice periods, this remains as one month, following the AST anniversary (e.g. rent paid on 15th, notice must be given on or before 15th of the first month and can't expire before the 14th of the second month).

Where the clause you've quoted above is concerned, I would not expect to find an AST which provides that "The Tenancy may be terminated at any time after the fixed Term by either party by serving one clear calendar month’s written notice upon the other, " (for non assured tenancies such a clause is fine).

As the law stands at the moment (aside from the Immigration Act 2016), a landlord under an AST can only give less than two months notice when evicting under certain grounds under Section 8. The clause you quote is highly likely to be unenforceable.

Where the landlord's notice period is concerned, Spencer v Taylor and the Deregulation Act 2015 brought in the following changes:

- For an AST that started before 1 October 2015, which doesn't state that notice must follow AST anniversary and isn't a contractual periodic tenancy (runs on monthly from start) Section 21(1) can be served, which allows just two straight months (a month being counted as 28 days, but you MUST add more notice to account for service periods etc)

- For an AST from 1 October 2015 onwards, Section 21 in prescribed Form 6 MUST be used in all cases, and the notice period is the same as for Section 21(1) above.

For ASTs dating from before 1 October 2015 which do stipulate landlord's notice must follow rent anniversary, Section 21(4) should still be used.

Charles King - Barrister-At-Law

12:03 PM, 7th December 2016
About 2 years ago

Hi Fiona - yes, your tenant's notice does not need to expire on a particular day, it just needs to be not less than one calendar month ('clear' doesn't really mean anything technical here). Interestingly this is more than statute requires (which is 4 weeks under section 5 of the Protection from Eviction Act 1977) and the written terms overrde the common law rule which says that a tenant's notice must be at least the length of, and expire on the last day of, a period (or the first day of the next one). Funnily enough no notice at all is required if the tenant leaves on the last day of a fixed term. And if your tenant gives valid notice and then fails to leave the property they are liable for double rent under the well-known (!!) Distress for Rent Act 1737 (although good luck in persuading a Distruct Judge to award it!)

Gunga Din

22:06 PM, 7th December 2016
About 2 years ago

NLA AST says:-

"4.2 If the Tenancy has become a Periodic Tenancy it may be terminated by:
4.2.1 The Landlord serving the Tenant at least two months notice in writing under Section 21 (4) (a) of the Housing Act 1988 (as amended) and expiring on the last day of a rental period of the Tenancy.
4.2.2 The Tenant giving written notice of at least four weeks and expiring on the last day of a rental period of the Tenancy."

I would have thought NLA would know!

Puzzler

11:38 AM, 10th December 2016
About 2 years ago

That clause is not a requirement, it should also say "or by agreement".

Fiona Stauch

19:20 PM, 12th December 2016
About 2 years ago

Reply to the comment left by "Charles King - Barrister-At-Law" at "07/12/2016 - 12:03":

Thank you very much for your answer and help Charles.
I should have mentioned it is a COMPANY LET AGREEMENT.
So as I understand what you are saying, as his notice was given on 23 November, his tenancy expires on 23 December?
I cannot hold him to it ending at the end of a fixed rent period?
Thank you Fiona STauch

Fiona Stauch

19:24 PM, 12th December 2016
About 2 years ago

Reply to the comment left by "Stephen Smith" at "07/12/2016 - 09:02":

Thanks for your input. I should have mentioned this was a Company Let AGreement

Fiona Stauch

19:25 PM, 12th December 2016
About 2 years ago

Reply to the comment left by "Mandy Thomson" at "07/12/2016 - 10:20":

Thanks for your input. I should have mentioned this was a Company Let AGreement

Michael Barnes

23:45 PM, 13th December 2016
About 2 years ago

Reply to the comment left by "Charles King - Barrister-At-Law" at "07/12/2016 - 12:03":

It is my understanding that the Housing Act 1988 S5(3)(e) overrides any clause in the agreement regarding notice for a Statutory Periodic Assured Tenancy.


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