Letting Agent is Illegally Extending a Periodic Tenancy

by Ed Atkinson

8:11 AM, 28th January 2014
About 7 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

11:04 AM, 28th January 2014
About 7 years ago

Reply to the comment left by "Ian Ringrose" at "28/01/2014 - 10:59":

I disagree, it's still defamation by innuendo, see >>> http://www.yourrights.org.uk/yourrights/right-of-free-expression/defamation/defamation-elements-of-a-claim.html
.

Romain Garcin

11:08 AM, 28th January 2014
About 7 years ago

Reply to the comment left by "Ian Ringrose" at "28/01/2014 - 10:59":

If that clause in included in a fixed term AST and then the tenant wishes to leave during a subsequent statutory periodic AST, I think it would be quite easy to show that the reference is untrue, which would indeed leave the landlord at risk of various claims.

Indeed in such case the following claim would be obviously incorrect as per Housing Act 1988: "The tenant signed an AST agreeing to give 2 months notice, but only gave 1 months notice" .

"I expect that periodic ASTs with a minimal term of 6 months are going to become a lot more common"

Yes, they may. Spencer v. Taylor opened the door for them, though there may be some reluctance from landlords to be the first to "give it a try" in court.

Romain Garcin

11:15 AM, 28th January 2014
About 7 years ago

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

"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"

If tenant serves a valid notice to quit then the tenancy (and thus liability for rent) ends on expiry.
HOWEVER, it the tenant then does not vacate he is still liable for compensation to the landlord, so-called "mesne profit" to an amount equal to what the rent was for each day that he overstays.
In fact, the landlord could even claim an amount double the rent for each day the tenant overstays. (s.18 of Distress for Rent 1737, which I believe still stands).

It is best to claim for these only after the tenant has vacated and not call anything "rent". The reason being not to risk accidently granting a new tenancy by in effect demanding rent while tenant is still at the property.

Mark Alexander

11:26 AM, 28th January 2014
About 7 years ago

Reply to the comment left by "Romain " at "28/01/2014 - 11:08":

I hadn't considered that point Romain, you are quite right, the agent is acting on behalf of the landlord, hence it is the landlord who would be accountable for any claim and he would have to sue his agent for any losses incurred.

This is a very good reason for Ed to find out who the owner of the property is and alert him to this dilemma and potential problem he could be facing as a direct consequence of the incompetence/naivety of his agent.
.

Romain Garcin

11:28 AM, 28th January 2014
About 7 years ago

Reply to the comment left by "Romain " at "28/01/2014 - 11:15":

I was off topic quite a bit above, apologies. Got carried away...

Ed Atkinson

11:39 AM, 28th January 2014
About 7 years ago

Reply to the comment left by "Mark Alexander" at "28/01/2014 - 11:26":

Mark

The more this thread develops, the more I like your suggestion of showing it all to the Agent. There is no great urgency as the tenant has until 10th Feb to give in his notice. My next step is to report back to the tenant in the centre of it all.

Romain - I am hoping to take on the tenants, I am not their current landlord. I will find out if the tenant has any dealings directly with his current landlord.

Thanks again Property118 !

Ed

Mark Alexander

11:40 AM, 28th January 2014
About 7 years ago

Reply to the comment left by "Ed Atkinson" at "28/01/2014 - 11:39":

This is what we are here for Ed 🙂
.

Industry Observer

11:40 AM, 28th January 2014
About 7 years ago

@ Ian Ringrose

Sorry meant to add you are completely wrong about putting in a clause that is unenforceable as it is simply bad practice and may well cause others to inspect the rest of your agreement more closely - and find more gaps they can take a cart and horses through.

By all means do so for it to act as a silent friend - like saying the tenant must give a month's notice (or longer!!) if he intends to leave end of fixed term. Totally unenforceable if challenged and there have been lower court cases lost because the ex tenant waved the OFT opinion on it at the Judge.

By all means try it, but not a very professional approach. If you do so, at first hint of a query on it from the tenant back off

Nicola Parsler

12:08 PM, 28th January 2014
About 7 years ago

My experience is that Letting Agents can be very ignorant of letting legislation when it falls outside of thier "norm". The information given to the tenant may simply be an office junior repeating what he was taught on his induction day. It may be enough to politely remind them that the tenancy has gone periodic and that therefore a different notice period applies. You can quote both their own AST clause and the sites above for reference. Of course it may not be recieved well but I always try "nice" before "nasty".

Industry Observer

12:42 PM, 28th January 2014
About 7 years ago

Nicola

You should witness the knowledge levels I see in private self managing landlords, some of them make agents look like the Einstein's of the industry.

I repeat one month notice is all that can be demanded

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