Letting Agent is Illegally Extending a Periodic Tenancy

by Ed Atkinson

8:11 AM, 28th January 2014
About 6 years ago

Letting Agent is Illegally Extending a Periodic Tenancy

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Letting Agent is Illegally Extending a Periodic Tenancy

What are the best tactics here? I have found some great new tenants who want to move into one of my properties ASAP. They are currently on a Periodic Tenancy paying monthly, so by my reckoning, they should be free vacate their existing home when the next full period ends on 10th March, subject to giving notice. However, their letting agent claims they should give two months notice.

The new tenants are a lovely family who turn out to be friends of friends twice over. They are Polish and I am worried that the Agent will try to bully them on this. Letting Agent is Illegally Extending a Periodic Tenancy

While their Tenancy Agreement has the text: “… the Tenant must give at least 2 calendar months’ notice ..” (Sect 9.i), it later clarifies: “… the Tenancy will become a Statutory Periodic Tenancy whereby the notice period will be in accordance with legislation.” (Sect 9.ii). There is no dispute that the tenants are currently on a Periodic Tenancy. The NLA has this information on the issue:

Termination of a periodic tenancy by the tenant”

“If fixed term of the tenancy has come to an end and the tenancy has been allowed to run on as a periodic tenancy and the tenant wants to leave he must provide notice in writing of the intention to leave.
The tenant must give at least four weeks notice where rent is paid on a weekly basis and at least a month’s notice where rent is paid on a monthly basis, expiring at the end of a period of the tenancy.”

Shelter agree:

How much notice do you have to give?”

“If your agreement is ‘periodic’ (that is, it rolls from week to week or month to month) you normally have to give at least 1 months’ notice to end it, or 4 weeks if you have a weekly tenancy.

The only exceptions to this are if: ..” (none apply in this case and anyway the exceptions shorten the notice)

The tenant has a letter from the agent from a couple of years ago informing them of the swap to a Periodic Tenancy and claiming “As stated in your Tenancy Agreement you must give two months notice to terminate ..” and then after listing all the charges they extract for doing nothing much the Agent’s letter ends “Please sign the copy of this letter as confirmation that you are in agreement ..” Their signed copy is on file and being used against them.

We have a few days before the next rent period starts to sort this out. The tenant will get worried about a legal battle and so we need suitable tactics to get the Agent to back down.

Any ideas?

Who could we say we could report them to?

Is a threat of negative local publicity too dangerous?

Many thanks

Ed Atkinson



Comments

Mark Alexander

8:18 AM, 28th January 2014
About 6 years ago

Hi Ed

Let us be clear, the Estate agent isn't acting illegally but the extended notice period is highly unlikely to be enforceable.

I suggest you refer the agent to this article.

You may also consider the threat of both you and your prospective tenants documenting what has happened on the "All Agents" website. It's the letting agents equivalent of Trip Adviser so they will not want the negative publicity.

Hopefully the agent is a member of at least one professional body. If so, find out which one(s) and ask them to speak to that professional body for further guidance.

Technically, if they serve 30 days notice today it is my opinion that their tenancy will end on 28th Feb, i.e. no requirement in law for a tenant to serve notice on a tenancy renewal date although many agents do sneak this into their contracts. I doubt their conditions are enforceable though.

Your prospective tenants could also speak to their local CAB, Shelter and Trading Standards Office. It really depends how badly they want their property though as some agents can be very intimidating indeed and most people just want a quiet life.

Good luck 🙂
.

Industry Observer

9:02 AM, 28th January 2014
About 6 years ago

Short and sharp this one.

Tenant inherits automatic right to give one month's notice when AST goes periodic. The only debate is exactly what that month should be.

Case Law now dictates this is the same rule as for the Landlord - the notice must be in writing (should be letter but LL can accept email) and must be dated to end on the day before a Rent Due Date as stated in the agreement being terminated.

So same rules as for a Landlord using a s21(4) but only one month.

Any clause in an agreement is a contractual arrangement and overriden by this Statutory right. Once the tenants have passed the date stated in their notice (if correct and correctly served on the LL etc) thern they can leave without further penalty.

End of and no need for anyone else to post on this one.

9:05 AM, 28th January 2014
About 6 years ago

Morning Ed,

As long as your potential tenants are currently on an assured shorthold, then common law states as follows.

“Periodic tenancy can be ended by the tenant serving notice on the landlord, the landlord does not have to agree the notice. At common law the minimum period of notice to quit is a complete period of the tenancy”

So if the tenants pay monthly, then one months’ notice is fine. I think the agent maybe getting confused with the notice a landlord would have to give to end the tenancy

Hope this helps

Jules

Industry Observer

9:07 AM, 28th January 2014
About 6 years ago

Mark

It is 4 weeks or a period of the tenancy.

If rent due date is 1st monthly and they serve today then agreed they can date notice 28th February but need to get email attached copy sent NOW and handwritten original hard copy in 1st class post today - then it will be deemed served Thursday 30th.

But if Rent Due Date is any date is say 15th monthly then notice served now would fulfil one month on 2nd March (allowing 2 days post for due service) and so would end 14th March

Periodic notice always needs great care especially from a tenant as Spencer v Taylor has not changed the tenants position on giving the notice at all, only the Landlord's.

I agree with Julie - let's be charitable and assume agent thinks tenant has to give same notice. However I think there is more to it than that Julie as the article says the agreement demands 2 months - so Mark the agent is in fact attempting to act illegally by trying to impose an illegal and unenforceable condition.

Ian Ringrose

9:53 AM, 28th January 2014
About 6 years ago

There is nothing wrong with an agent putting an extended notice period (even when it is highly unlikely to be enforceable) into an AST if it is in the landlord’s interests to do so. It is the agent job to do what is best for the landlord this includes not needlessly informing a current tenant of their rights.

I would expect the agent to give the ex tenant a fair and true reference saying that they left without keeping to the notice period, but not to take legal action enforcing the notice period.

It is up to the tenants to decide if they wish to risk having a bad reference given that most agents/landlords are more likely to take notice of the reference from the last but one agent/landlord.

Mark Alexander

10:12 AM, 28th January 2014
About 6 years ago

Reply to the comment left by "Ian Ringrose" at "28/01/2014 - 09:53":

That may well be what happens Ian but if it does I suspect the agents would risk a claim for defamation of character from the tenants on the basis that they were utilising their statutory rights and the reported breach of notice was not legally binding.

If the agents have money I suspect a "no-win-no-fee" lawyer would jump at the chance to represent the tenants, especially if they can prove they lost out on a rental property as a result of the adverse reference.
.

Romain Garcin

10:19 AM, 28th January 2014
About 6 years ago

To be specific, the notice should not expire the day before a rent due date, but on the last (or first) day of a tenancy period (as rightly explained in NLA quote).
Usually both dates are the same, but not always.

Note that longer notice periods for notices by tenants are possible in periodic ASTs, but not in _statutory_ periodic ASTs.

@Ian Ringrose: "I would expect the agent to give the ex tenant a far and true reference saying that they left without keeping to the notice period".

If the tenant does not comply with a notice clause that is in any case ineffective by law, it is neither fair nor true to say that the tenant didn't keep to that notice period.

Ed Atkinson

10:57 AM, 28th January 2014
About 6 years ago

Dear All

I am so grateful for your comments and advice. Please keep it coming!

The Periodic Tenancy re-starts on the 11th of each month, so the tenants must give notice before 10th Feb to end the tenancy on 10th March.

I have also phoned the NLA helpline, which I have always found to be - indeed - helpful. The lady agreed that the 2 months that the tenants accepted in the letter on swapping to a Periodic tenancy is unenforceable. She thought that the case would develop as follows if the Agent does not accept this:

Tenant gives correct notice and cancels rent after 11 Feb payment
Tenant vacates by 10th March
Tenant does not get deposit back because agent still claims tenancy is ongoing, or March rent is due.
Tenant raises dispute with the Tenancy Deposit Scheme
Tenant wins dispute with the Tenancy Deposit Scheme

That would then be a nice story to publicise locally - or hint that such a result is possible. It would not be slander etc, just reporting facts.

Cheers and thanks

Ed

Ian Ringrose

10:59 AM, 28th January 2014
About 6 years ago

Mark,

I think it would be very hard to win a defamation of character case if the reference said.

-> “The tenant signed an AST agreeing to give 2 months notice, but only gave 1 months notice”

without stating any optimum on the tenant’s actions.

Romain,

I expect that periodic ASTs with a minimal term of 6 months are going to become a lot more common, the only issue I see with them is that agents will not be able to make charges for a new AST every 6 months.

Mark Alexander

11:02 AM, 28th January 2014
About 6 years ago

Reply to the comment left by "Ed Atkinson" at "28/01/2014 - 10:57":

Hi Ed

Have you considered printing off this thread and delivering it to the agent in question?

Alternatively, how about emailing a link to them and following that email up with a telephone call?
.

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