Tenant only gave 5 days notice

by Readers Question

14:37 PM, 8th April 2014
About 7 years ago

Tenant only gave 5 days notice

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Tenant only gave 5 days notice

I have just had my tenants move out of the property during a 2 month section 21 notice I served on them. It was due to expire on 3rd June. The tenancy ended on 3rd April, but they contacted me only 5 days before they decided to move out saying they would be going on 30th March. The rent was paid up to 15th April and they have asked for a refund of those 2 weeks.Tenant only gave 5 days notice

Does anyone know if legally I have to give it back to them?

I did not ask them to move out any earlier than 3rd June!

Thanks

Tracey

Comments

Steve Masters

9:58 AM, 12th April 2014
About 7 years ago

Reply to the comment left by "Rob Cripps" at "12/04/2014 - 06:58":

Rob,

When a fixed term AST ends it only becomes a periodic SPT if the tenants stay on beyond the contracted end date of the tenancy. As neither is the case then the AST ended at the end of it's fixed term.

As a landlord I usually consider there are three issues to consider that determine my actions, what is legal, what is fair or what is practical. They don't always align.

If I serve notice on my tenants then regardless of what is the legal view on rent payable it is fair and practical to expect my tenants to pay rent up to their leaving date and accept a short void period without rent if they leave early. I get possession, mission accomplished.

However, if the tenants serve notice on me then I tell them I would expect them to pay rent up to the end of their notice period even if they move out early as it was their initiative and choice not mine. I add that should they move out early and I find a new tenant early, then I only expect them to pay up to when the new tenant starts. They usually agree that this seems legal and fair and they usually stick to it. It may not be practical to enforce if the tenants only pay up to leaving, but this rarely happens to me.

I find that talking though the issue of rent payable at the start of proceedings is effective.

That is my approach anyway.

Mark Alexander

10:08 AM, 12th April 2014
About 7 years ago

Reply to the comment left by "Lawrence Squid" at "12/04/2014 - 09:43":

Funny that Lawrence, I think the same way and do the same things as you and I've also been lucky 😉
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Industry Observer

10:10 AM, 12th April 2014
About 7 years ago

Steve

No-one needs to agree to a periodic tenancy it just happens if the tenant is in actual occupancy or legally entitled to be.

Koysar Ali

11:08 AM, 12th April 2014
About 7 years ago

Just because the 'Fixed Term' has ended (the Assured part of an AST) it does not necessarily mean that the contract has ended. Normally the tenancy becomes a rolling 'Periodic' tenancy. Therefore usually a one month notice is still required by the tenant if they wish to leave and 2 months notice has to be given by landlord where he/she wants to end the contract (but not sooner than the last day of the fixed term), in accordance with Housing Act, Section 21 notice. Or less notice if using Section 8 grounds eg rent arrears etc). So section 21 notice is not a red herring. Please do use it where relevant.

However, that mentioned, I do like The above landlords approach (post by Steve I think) where he considers the legal aspect, fairness, then practicality.

Industry Observer

12:23 PM, 12th April 2014
About 7 years ago

Koysar

One month tenant or two months Landlord to end of a period of the tenancy i.e. day before a rent due date.

Gamble on Spencer v Taylor if you like and just use s21(1) and just give 2 months when periodic, but I wouldn't rtecommend it.

Had it on informed good authority yesterday that Superstrike v Rodriguesand Johnson v Old will not go to Supreme Court because the decisions at CoA are legally ' sound', Spencer v Taylor probably will go SC and because it is a silly decision will be overturned so I wouldn't advise getting too used to using s21(1) on periodics or you'll get into bad habits!!

Koysar Ali

12:24 PM, 12th April 2014
About 7 years ago

I have read Nigel Parry's comments and would have to say he is Not incorrect!

An AST is a legally binding contract that is only normally ended by either party serving a Notice in accordance with the Housing Act. For Landlords that should always be in the form of Section 21 or 8 notice or by the tenant serving 1 months notice to quit after or on the completion of their 'Fixed Term.

As I mentioned earlier - the completion of the 'Fixed Term' does not necessarily mean that the tenancy contract has ended, unless the contract has been written that way -(which is not typical if the AST contract has been professionally drafted).

However, I would suggest considering the comments made by Lawrence and more so the comments by Steve.

Mark Alexander

12:30 PM, 12th April 2014
About 7 years ago

Reply to the comment left by "Koysar Ali" at "12/04/2014 - 12:24":

The key word in both of your recent posts is "necessarily".

If tenants tell their landlord they are moving out on the last day of their tenancy (or any time before that) then the landlord MUST respect that no notice period is required. That is the law.

Talk of section 21 and section 8 in these circumstances is definitely a red herring because the service of such notices cannot and does not extend the original fixed term tenancy period.

If a tenant stays just one day beyond the fixed term tenancy period that's a different matter, a new periodic tenancy has begun and notice periods become a requirement.

I trust this clears up any remaining confusion.
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Industry Observer

13:21 PM, 12th April 2014
About 7 years ago

And re-serving of PI Mark don't forget that, and advising The Dispute Service especially, and probably Mydeposits

Koysar Ali

14:34 PM, 12th April 2014
About 7 years ago

Yes exactly, the key word used is 'necessarily'. I repeat - The completion of a "Fixed Term'' does not "necessarily" mean the Tenancy Contract has ended - unless (the following being the "necessary" part) - the contract has been written that way. I.e. That the Tenancy Contract Ends on the same date as the last date of the " Fixed Term". This is not typical as a standard AST becomes a 'Statutory Periodic Tenancy' after the end date of the Fixed period. You will have to check to see how your own contract has been written.

I think what is confusing some people are the terms : End of "Fixed Term" and "End of Tenancy Contract". These are two different things.

The original poster mentioned 'The tenancy ended on....'. What I think he meant actually meant was that the Fixed Term ended on ....... This is not the same as the Contract Ended, as this can only happen where relevant notices are given by either party to End the Contract, unless the written AST contract mentions otherwise.

The Fixed Term (usually 6 month or 12 months) is the term or period during which the tenant is given an "Assured" tenancy. I.e. They can not normally be asked to leave the property during this period or term unless they are in breach of their tenancy in accordance with section 8 of the Housing Act. That is the Law.

The "End of Contract" can only be achieved by either the tenant giving at least one month notice but no sooner than the last date of the End of the Fixed Term. Ie the tenant has to contractually complete tenancy up to the end date of the Fixed Term. Or the Landlord serves a 2 month notice asking the tenant to vacate ie a Section 21 notice, but again no sooner than the last day of the End of Fixed Term.

Mark I beg to differ, a Section 21 is not a Red hearing. It should be used "where relevant" or risk being accused of unlawful eviction. Notices to quit should ideally be given or received from the tenants in writing. Just relying on the End of Fixed Term date is risky business.

Perhaps we shall agree to disagree on this matter.

Mark Alexander

15:55 PM, 12th April 2014
About 7 years ago

Reply to the comment left by "Koysar Ali" at "12/04/2014 - 14:34":

I still disagree.

If a tenant confirms to a landlord that he is moving out of the property on the last day of a fixed term tenancy, or any time before, and then subsequently moves out on or before the last day of the fixed term tenancy then the last day of the fixed term tenancy is deemed also to be the end of the tenancy, regardless of how the tenancy agreement mnay be written, regardless of how much notice has been given by the tenant and regardless of whether a landlord has issued a section 21 or section 8 notice or not.

Don't take my word for it though. If you are ever in this position and you dispute the tenancy has ended I'm sure a judge will be happy to put you right and you will have a very long rental void in the meantime to remind you of this discussion.
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