The various and wondrous ways that tenancies end

by Tessa Shepperson

8:57 AM, 13th April 2011
About 9 years ago

The various and wondrous ways that tenancies end

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The various and wondrous ways that tenancies end

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:

  • When the tenant moves out?
  • When the tenant hands the keys back?
  • Or when the tenant dies?

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:

  • By agreement
  • By ‘effluxion of time’
  • By a court order for possession
  • By frustration.

What does that all mean?

Agreement

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!

Court orders

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:

  • Only issue proceedings where there is a mandatory ground for possession so the tenants ability to delay matters is minimised
  • Make sure all your paperwork is rock solid and you are able to prove service of all notices
  • Apply for possession promptly and don’t waste time when following the court procedures
  • Understand what you are doing so you don’t make any mistakes (making a mistake can delay possession for many months and could cost you dear).  Note that if you want to do this work yourself my Do it Yourself Kits may help.  Otherwise use a solicitor, making sure that they specialise in this work.  I offer a service via www.landlordlaw.co.uk, plus there are quite a few other specialist firms that you can use.

Frustration

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?

  • Not if the tenant gets moved by his job to another city. It may seem to the tenant that this is a frustrating circumstance but not in the eyes of the law. For example, he could stay and get another job
  • Not if the property is in disrepair.  This will entitle the tenant to bring a claim against the landlord for an order that the  repair work be done and for compensation, but it does not mean that they can move out and end the tenancy
  • Not even if the tenant dies! Here the tenants ‘ownership’ of the tenancy will pass to his personal representatives, or, in some circumstances for protected and statutory tenancies under the Rent Act 1977 or assured tenancies under the Housing Act, as set out in the relevant Act.  Mind you, most personal representatives will be only too happy to agree to a termination of the tenancy once they learn that the estate is also liable for the rent.  Otherwise, for periodic ASTs the landlord can end the tenancy under section 21 or ground 7 in Schedule 2 of the Act.

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:

  1. Have you got what it takes to be a landlord?
  2. Make sure your property is legal before you rent
  3. Check out your tenants or live to rue the day
  4. Why you need to have the right tenancy agreement for your letting
  5. All about tenancy deposits
  6. How to increase rent the proper way
  7. Help!  My tenant has stopped paying rent – what do I do?
  8. I think my tenant has left, can I change the locks?
  9. What do you do if your tenant won’t leave when their section 21 notice expires?
  10. You are here | The various and wondrous ways that tenancies end.

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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