Should we have been given notice?

by Readers Question

3 months ago

Should we have been given notice?

Make Text Bigger
Should we have been given notice?

Our fixed term tenancy rolled into a periodic one after 6 months.

When we moved over to the periodic tenancy, should the landlord/letting agent have advised us of the change to the notice period?

As I understand it, we have to give 1 months notice from our rent payment date. We are buying a house with completion in 3 weeks and want to give the months notice now to end 1 month later (we will use the extra week or so to get carpets cleaned, etc) but the letting agent said the notice won’t start until 28th of this month to end 28th of next month.

Although it does state in the tenancy agreement about the notice period changing, should we have been alerted to it nonetheless?

The landlord won’t reduce the notice period either.

Many thanks

Diane

Comments

Martin Roberts

3 months ago

I'm not certain of the legal position, but you don't have to be too 'helpful' if the landlord wants to arrange viewings before you leave, or you could explain any issues to prospective tenants the landlord brings round.

Gary Nock

3 months ago

Most ASTs contain a clause that one months notice must be given, expiring the day before a rent due date. And normally contains a separate clause stating that if a tenant is obstructive to viewings in the last month then the landlord can charge up to one months rent. I would advise a thorough reading of your tenancy agreement.

Gary Nock

3 months ago

And there is no obligation on the landlord or agent to notify you of the ending of the fixed term and commencement of a statutory periodic one. Also be careful that completion dates on purchases can either be extended or collapse completely and you may be asking your landlord or agent to "hold over" for a few days or even weeks while it finally completes. A reasonable landlord or agent may agree to this provided a new tenant is not due to move in. If they have then you are obliged to move out- but you can only be forced to move out by order of a court. Which takes at least two months under Section 21 Notice plus court time. So landlord is better off negotiating the move out date.

Paul Green

3 months ago

One months notice means from the day before you pay you rent. If you paid the rent for this particular month, you can't just choose any old day you like and count that as one month. That's why it's called one months notice. You might pay your rent on the 28th of the month and give notice on the 29th but effectively your going to be there nearly 2 months, because you missed the deadline by one day . It's the same if you pay your rent weekly. One full week from the rent payment date Regardless of when you decide too leave. It's all in a standard AST. And on line regarding periodic notices. It's the same for everyone. Your not being singled out......

Mandy Thomson

3 months ago

Reply to the comment left by Paul Green at 18/09/2017 - 09:44
There is no notice period for tenants set down by statute, unlike landlords (where of course it's a minimum of 2 months before the last day of the fixed term or at any point after fixed term ends).

A tenant's notice is therefore whatever is in the agreement, and the one calendar month at the monthly tenancy renewal date (as in this case) is the most common. Unfortunately, this does mean the landlord can hold a tenant to this. This would most likely mean rent for the remaining notice is deducted from the deposit, as arrears, but if there is no deposit or the deposit doesn't cover most landlords would simply write this off unless the sum was substantial.

This makes the situation difficult where the tenant is buying a property, as the conveyancing process typically takes 4 months (but could be longer or shorter) and nowadays the completion date comes up very soon after exchange, so those in the chain have little time to prepare for moving (when I last purchased in 2012, I had 2 weeks from exchange to completion after waiting 5 months).

I would suggest that Diane contacts her landlord directly and explains the situation, perhaps you can reach a compromise between you? Unfortunately, agents are likely to simply stick to the letter of the agreement; the landlord may well be more flexible if you can talk to him/her one to one and politely explain your difficulty. If you don't know who the landlord is, you can do a search online with Land Registry.

Ray Davison

3 months ago

The other thing to bear in mind Diane is that if you give notice, this legally ends your Tenancy on the last day of your (Correctly given) notice period, no ifs or buts. This means that the Landlord cannot accept further rent from you without this creating by default a NEW Tenancy, not an extension of the original. As this would therefore be an undocumented Tenancy, with only the very basic conditions of The Housing Act applying to it, a Landlord would be foolish to do this because of the difficult legal position this may put him in if you then decided to stay on due to the collapse of your purchase or some other reason. This is also one reason why most agents will stick to the letter of the Agreement as noted by Mandy above as they are trying to protect the Landlord (Even though the Landlord may not realise this). Obviously from your point of view a new Tenancy also means that a new notice must be given if you then wish to leave at a later date. Now, all sorts of informal agreements can be made that do not follow the correct procedures however you and the Landlord must take educated (Or uneducated) risks in making those agreements as the consequences can be many and may be unknown to you at the time. For example, if you give notice and do not leave at the appropriate time the Landlord can refuse to enter a new tenancy (Remember your original one ends whatever your wishes as you have given notice) and therefore not accept rent from you. However the Landlord can then invoke the Distress for Rent legislation which allows for you to be charged double rent for the period you stay beyond your notice period. You could also be responsible for any re-marketing costs of the Landlord if he loses a new Tenant that cannot occupy the property because you refuse to leave.

Mandy Thomson

3 months ago

Reply to the comment left by Ray Davison at 18/09/2017 - 11:23
When anyone - whether landlord or tenant, gives notice to end a tenancy it is simply that - a notice of intent, it does not bring the tenancy to an end until the tenant follows up with a surrender - meaning they give vacant possession.

Until the tenant surrenders (or is physically evicted by court bailiffs carrying out a court possession order) the tenancy continues.

A tenant is entitled to an initial 6 months of statutory fixed term which once spent can only be renewed by the landlord granting a further fixed term.

Source: I work as a landlord advisor for a national landlord organisation and this is a very common situation.

Gary Nock

3 months ago

Hi Mandy. You state:
"A tenant is entitled to an initial 6 months of statutory fixed term which once spent can only be renewed by the landlord granting a further fixed term"

Unless of course it goes onto a statutory periodic- as in this case- and it continues on a rolling monthly basis.

Ray Davison

3 months ago

Reply to the comment left by Mandy Thomson at 18/09/2017 - 14:02
"When anyone - whether landlord or tenant, gives notice to end a tenancy it is simply that - a notice of intent, it does not bring the tenancy to an end until the tenant follows up with a surrender - meaning they give vacant possession.

Until the tenant surrenders (or is physically evicted by court bailiffs carrying out a court possession order) the tenancy continues."

Mandy, I am not a solicitor so I cannot factually say that you are incorrect here however the information I have seen both from a national landlord organisation and from solicitors would suggest that you are. The advice I have seen is that a notice to quit from a Tenant does indeed END the Tenancy (Although may need an eviction process to enforce it) however as you say a S21 from the Landlord does not (This does, as you say, require either surrender or eviction). This is why you can implement the distress for rent act.

Maybe we both need to go away and re-check this?

Romain Garcin

3 months ago

Reply to the comment left by Mandy Thomson at 18/09/2017 - 14:02
It should be stressed that a valid notice to quit does end the tenancy on expiry. The actions of the tenants have actually no bearing on this.

1 2 3

Leave Comments

Please Log-In OR Become a member to reply to comments or subscribe to new comment notifications.

Forgotten your password?

OR

BECOME A MEMBER

Five Warnings for 2018 - #1 The Minimum Energy Efficiency Standards