Statutory v Contractual Periodic Tenancy: what to issue?

Statutory v Contractual Periodic Tenancy: what to issue?

10:21 AM, 16th December 2020, About 12 months ago 44

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Despite having been a landlord for over 20 years, I only became aware yesterday of the existence of contractual periodic tenancies, as opposed to statutory periodic tenancies! I am now rather worried about this; when one of our fixed-term tenancies has come to an end I have – in good faith – been telling our tenants that their tenancy has now become a statutory periodic tenancy, and issued them with an updated Deposit Protection Certificate.

However, having read up on the difference between the two types of periodic tenancy, I am wondering if I should also have been sending them the most recent ‘How to Rent’ guide, and perhaps all the other paperwork associated with the start of a tenancy (EPC, Gas Safety Cert, etc), exactly as though it was a brand-new tenancy? Can anyone clarify this for me?

And if I assume I definitely should have re-issued the ‘How to Rent’ guide, could I retrieve the situation by sending the new version to all our tenants now? (We have one tenant where we may wish to issue a Section 21 notice in the next month or so, hence my worry about this!)

Many thanks

Annabel



Comments

by Prakash Tanna

10:50 AM, 20th December 2020, About 12 months ago

Reply to the comment left by Seething Landlord at 20/12/2020 - 08:13
Fair point and that is also a possibility. My knee jerk reaction at 2am was that the agent is shifty but on reflection, we are all human and can make mistakes! 😉

Would be interesting to get some feedback once the agent is challenged on that point and see if they accept it was an error and learn from it.

by Seething Landlord

12:16 PM, 20th December 2020, About 12 months ago

Reply to the comment left by Prakash Tanna at 20/12/2020 - 10:50
Don't hold your breath! 😀

by Robert M

15:50 PM, 20th December 2020, About 12 months ago

This thread raises a few interesting points.

Except where agents could use the end of a fixed period as an excuse to charge more fees I have never understood why agreements did not include a contractual periodic tenancy. As an agent and a landlord I have used the contractual period for more than 25 years.

Technically, each month is a new tenancy. For this reason, as I understand it, you could not unilaterally give notice to end a periodic tenancy. In fact you actually give notice not to renew it at the end of the given term (month). This is why notice could only be given on month end dates. How this fits with the new theory you can give notice to any date I do not know. Of course both sides can agree a different date, short notice etc.

Finally mydeposits simply do not understand the concept of contractual periodic tenancies. To continue the protection under a contractual periodic tenancy you either have to lie and state it is statutory or renew the protection and pay another fee.

by Seething Landlord

18:51 PM, 20th December 2020, About 12 months ago

Reply to the comment left by Robert at 20/12/2020 - 15:50
Why do you think that each month of a statutory periodic tenancy is a new tenancy? Where does this idea come from? It comes into existence by operation of law if the tenant remains in occupation after the end of the fixed term and continues indefinitely until terminated.
Other than by agreement between the parties the grounds upon which a landlord can end a tenancy and recover possession are defined by statute i.e. by order of the court following service of the appropriate notice under section 8 or section 21 of the Housing Act. Timescales and notice periods are included in the legislation and apply regardless of what the tenancy agreement might say.

by Robert M

22:25 PM, 20th December 2020, About 12 months ago

Quite simply it is a periodic tenancy. Each period (usually a month) is, strictly speaking, a different tenancy. A rather esoteric point of very little practical interest or effect, but what other circumstances explain the old established principle that a tenant on a periodic tenancy may give notice of one month ending on a rent period (or a landlord two months)?

If you like pub quizzes remember that strictly a tenant on a periodic agreement cannot unilaterally give notice to end the agreement, he gives notice he does not wish to renew at the end of the next rent period.

No I do not have a life, but I spent a career interpreting and finding loopholes in legislation. I think this is an old chestnut but I cannot explain how it fits in with the government's more recent theory you can give notice for any random date provided that a minimum notice period is adhered to.

I rather suspect that Wayne or Tracey has been drafted into the Housing Department or, it is possible, I have missed a change in the law.

(Wayne or Tracey were moved on to draft the explanatory document for the Tenant Fees Act.)

by Seething Landlord

0:46 AM, 21st December 2020, About 12 months ago

Reply to the comment left by Robert at 20/12/2020 - 22:25
In the case of a monthly periodic tenancy each month is a "period" of a continuing tenancy, not a new tenancy. Which particular legislation or case law leads you to your conclusion? You might want to read the Court of Appeal judgment in Superstrike v Rodrigues for an analysis of the law relating to the creation of a statutory periodic tenancy, referred to throughout as "the new tenancy", not the "new series of monthly tenancies".

The minimum notice required to be given by a tenant or landlord (4 weeks) is governed by the Protection from Eviction Act 1977 S5. The requirement for notice to expire at the end of a "period" was confirmed in Crate v Miller 1947 CA, and in the case of notice from a landlord given statutory authority by Housing Act 1988 S21 (4) (a). The requirement was removed by S35 of the Deregulation Act 2015, incorporated into HA 1988 as S21 (4ZA). with effect from 1st October 2015. It is not a "government theory", it is the statutory provision relating to notice periods.

by Prakash Tanna

7:42 AM, 21st December 2020, About 12 months ago

Reply to the comment left by Seething Landlord at 21/12/2020 - 00:46
I'm with you on this one and agree with your thinking. This is how I have always known it to be. It would be good to clear this up and have everybody on board and in agreement though?

by Annabel Blake

8:41 AM, 21st December 2020, About 12 months ago

Reply to the comment left by Robert at 20/12/2020 - 15:50
Yes, I wondered about this, as a user of My Deposits. However, I checked one of the certificates I have sent out recently where one of our tenancies became periodic, and although My Deposits refer to 'statutory' when you renew the protection, the actual certificate simply shows Protection Type as 'Periodic tenancy' , which I thought was probably a good thing.
If I can summon the energy, as a tease, I might write to My Deposits and ask them what I am meant to do when a fixed term becomes Contractual Periodic. (I rang several local letting agents in my quest for more info on this matter, and they all sounded completely blank when I mentioned contractual!)

by David

16:29 PM, 21st December 2020, About 12 months ago

It seems this myth about periodic tenancies being a new tenancy each month is as hard to kill as some viruses.

by Robert M

14:12 PM, 22nd December 2020, About 12 months ago

I do not doubt that each month under a periodic tenancy does not need to be treated as a separate tenancy for deposit protection and serving papers etc. However, it certainly was the case that notice could only be given unilaterally ending on a rent date, ie each month was treated as establishing new rights for that period.

What appears to be the case is that a contractual periodic tenancy is treated as a continuation of original tenancy but a statutory periodic tenancy is a new tenancy. Why the distinction I do not know, I simply have not had the need to research this point.

Another area of confusion is whether a tenant may move out without notice at the end of the fixed period. Ideally the position is managed in advance, but given that a periodic tenancy comes into force automatically (whether contractual or periodic) I have witnessed much confusion.

Many years ago I concluded that a contract requiring the tenants give notice for the end of the fixed term, with a provision for a contractual periodic extension otherwise is best from a legal and convenience point of view.

Anyone wishing to take up the distinction between the two types of periodic tenancy with mydeposits needs time and patience. They simply do not understand the distinction.

I have never checked if the new “flexible” end date where you can give notice to mid-month was achieved via an amendment to the Housing Act or it was decided one was not needed. Again, I simply have not had the need to research this point.

The ridiculous point is that we should not need to debate these points. The law should be more clear and less ambiguous. It should not have been necessary for Superstrike, Walcott v Jones and Leeds City Council v Broadley to have ever have gone to court.


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