8:57 AM, 13th April 2011, About 10 years ago
This is the last in this series of 10 articles written by specialist landlord & tenant solicitor Tessa Shepperson, founder of the online Landlord Law Service.
The various and wondrous ways that tenancies end
When does a tenancy end? Is it:
You may be surprised to learn that in those three situations above often the tenancy DOESN’T end! So when does it?
So far as the law is concerned, a tenancy will end in the following situations:
What does that all mean?
It is always up to the landlord and the tenant to agree whatever they like. So if the landlord agrees that the tenant may leave half way through the fixed term that will end the tenancy. It may be wise for the tenant to obtain some kind of documentary proof of this, such as a letter, but if he moves out, after the landlord agrees that he may leave early, that will end the tenancy and he will not be liable for any more rent.
Note that the doctrine of implied surrender, which I featured in an earlier article, will come into this category, as the rule is based on the fact that the tenant s behaviour shows that he wishes to end the tenancy and by going in and changing the locks the landlord accepts the implied surrender offer and ends the tenancy.
The tenant cannot however force the landlord to accept the surrender, either by just leaving or by handing in the keys. If the landlord does not agree to the tenancy ending he should say so, preferably in writing, and the tenant will remain liable for the rent (although for a periodic tenancy it will just be rent in lieu of notice).
Effluxion of time
This is a lovely old lawyer’s phrase! It means that the tenancy has come to its natural end. So if you have a tenancy which is for six months from 1 January, then on 30 June the tenancy will end by effluxion of time.
If the tenant stays on, then in most cases the tenancy will continue. With an AST (Assured Shorthold Tenancy) agreement it will continue because section 5 of the Housing Act 1988 says it will. With a common law tenancy it will continue because the parties will be assumed to have agreed to this by the tenant staying in occupation and the landlord by accepting rent.
However, if the tenant moves out just before the end of the fixed term, say (in our example) on June 29, then the tenancy will end at the end of the fixed term on June 30th. They don’t have to give the landlord any notice about this, the tenancy will just end automatically.
Landlords get absolutely infuriated by this. “I need at least two months notice to arrange for the checkout meeting and for the property to be re-let in order to avoid voids”, one landlord said to me recently. Well, that is, I am afraid, tough luck. The law says the tenant doesn’t have to give any notice, not if they leave at the end of the fixed term.
If the landlord puts a clause into his tenancy agreement requiring notice then the Office of Fair Trading have confirmed in their Guidance on Unfair Terms in Tenancy Agreements that such a clause will be void under the Unfair Terms in Consumer Contracts Regulations. Certainly any attempt to claim money in lieu of notice from tenants will not succeed.
If the tenants stay just one day AFTER the end of the fixed term it is different. They are then (with an AST at least) into a periodic tenancy and must give the proper notice, generally one month, but not if they leave at the end of the fixed term. Sorry!
I have talked a bit about possession proceedings in the earlier articles. A court order will end the tenancy, although the tenant will normally be given a period of time to vacate. The tenancy will not finally end until he has left (there are various complicated legal points which could be made here, but I will spare you).
The problem with court orders, so far as landlords are concerned, is the time and expense of getting them, particularly if they will be applying for possession because the tenant has not paid his rent.
There is not a lot that can be done about this. It is partly down to delays in the court system, but as they are not going to be getting any additional funding to pay for more clerks and Judges, this is a problem which is unlikely to be solved any time soon.
The best you can do is:
This is a rule which says that in some circumstances a contract will be impossible to perform and the contract will therefore be ended by frustration.
When will this be?
Really the only time the doctrine of frustration will apply to a tenancy agreement is if the property is physically destroyed, for example if it burns to the ground, or is on a cliff top and falls into the sea.
Conclusion of this series
I hope you have enjoyed this short series of articles for Property118.com’s blog. I have certainly enjoyed writing it for you.
If you have any landlord and tenant related problems, remember that I have a membership site at www.landlordlaw.co.uk which has answers to many more legal problems than I have been able to cover in this series, plus tenancy agreements, possession notices and a forum where you can ask me questions, to name but a few of its features. Membership starts at just £20 per month.
I also plan to publish various landlord and tenant law related ebooks and kits over the coming months. The first will be my ebook on section 21, but there are many others planned. You can be kept informed by subscribing to my free newsletter (which you can do from the signup form on the home page of Landlord Law) or by following my Landlord Law Blog at www.landlordlawblog.co.uk.
Other articles produced by Tessa exclusively for Property118.com are:
Tessa Shepperson is a solicitor specialising in residential landlord and tenant law. She practices online via her web-site Landlord Law www.landlordlaw.co.uk and blogs at the Landlord Law Blog www.landlordlawblog.co.uk.
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