2 months notice fixed term tenancy

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    2 months notice fixed term tenancy

    Hi our tenancy is due to run out on 9th February after 12 months here. So we gave one month notice on the 10th Jan. The estate agent got back to us saying the tenancy agreement says we must give two months notice and that the landlord will take the two months notice from the 10jan meaning we must stay on until the 9th march (unless he find a new tenant)

    I have looked into it and according to guidance on Unfair terms in tenancy agreements this can not be done by the landlord.
    Section 3.78 states:

    "A tenant is not required to give notice to bring the tenancy to an end at the

    end of the fixed term. That is because a fixed term agreement comes to an

    end at the end of the fixed term, and no periodic tenancy will arise if the

    tenant then leaves. We appreciate that landlords will want to ensure that

    their properties are not left empty between tenancies, but object to terms that

    impose a contractual obligation on the tenant to give notice in order for the

    tenancy to be terminated at the end of the fixed term. This could allow the

    landlord to impose a substantial financial penalty on tenants who do not

    realise that notice is not required, by requiring them to pay rent for a period

    after the end of the fixed term. Terms such as this are not necessary to

    protect landlords from the possibility that their property will be left empty, as

    the law allows landlords to recover possession at the end of the fixed term

    by serving at least two months' notice, and they could do so where their

    current tenant fails to indicate when asked whether they intend to stay on.

    The landlord and tenant could of course still agree to a renewal of the

    tenancy even after such notice was served."




    So my understanding is that
    1. We don't need to even give notice as the tenancy is going to expire on the 9th of Feb so if we were to just leave on that date and say nothing we would be within our rights (rude, but within our rights)

    2. The landlord has no grounds to try and get rent from us following the end of the tenancy provided we left within the fixed term period.

    3. Our statutory rights override the tenancy agreement. (Although I'm not sure exactly which ones)


    My problem is how to go about this. The estate agent is a bit of a jobsworth cow. I'd rather have some kind of legislative back up before sending the above quoted section to her as my guess is they will not like it and will try to say we are wrong.

    Are we wrong? Does anyone know which part of the housing act will back me up? I have seen people say that section 5(3)(e) is possibly of some use but can't really understand what it means. Also someone said something about section 21 of the housing act but that appeared to me to be more to do with landlord giving notice/evicting.

    Please help. Thanks in advance.

    #2
    You are correct. you are within your rights to just leave at the end of the tenancy without giving notice. Just pop the keys in at the office on your way out. Just make sure it is not after the end date. I would do that just on principle

    Comment


      #3
      Thanks, is there any particular legislation that backs that up. I know they will try and make me doubt myself so feel it's better if I give them straight up facts so they are stopped in their tracks. All the wordings confuse me. I've read and re-read them so many times at this point. Shall I just stick with the section 3.78 that's I quoted above?

      Comment


        #4
        It is law that dictates that you can leave at the end of the tenancy without notice. No wording in a tenancy agreement can over rule this. Just tell them that.

        As they seem to not understand the law. Have they protected your deposit properly!

        Comment


          #5
          Check your tenancy agreement.

          Most agreements contain a fixed term - which is defined as a something like "a term of 12 months commencing on xx/xx/xxxx and ending on yy/yy/yyyy".
          That would indicate that the tenancy ends automatically on yy/yy/yyyy and the agreement (and all of its terms) ends with it.

          Sometimes (although rarely), the agreement contains a different wording, which indicates that the agreement doesn't have a fixed term and continues after the initial term. The wording isn't easy to give a simple example of, but would usually contain text such as "starts on xx/xx/xxxx and, after an initial term of y months, continues on a monthly basis on the same terms."

          Assuming the text gives the normal fixed term and ends, you are free to leave on or before the last day of the fixed term with no notice, as the tenancy ends on the last day and a new periodic tenancy doesn't start because you no longer have possession of the property. Agents are not known for their understanding of this.
          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

          Comment


            #6
            Originally posted by Hollymou12 View Post
            Thanks, is there any particular legislation that backs that up.
            The law works the other way round.
            The Housing Act of 1988 is what creates a new periodic tenancy if you remain in the property after the end of the fixed term.
            If you have moved out of the property when the fixed term ends, no periodic tenancy is created, so the tenancy ends in line with the wording of the contract.

            As an aside, the same act also sets the notice periods for the new periodic tenancy, as the law specifically makes the new periodic tenancy follow the same terms as the previous fixed term other than any clauses relating to how it ends - so the notice period would not be two month's even if you stay after the fixed term (it would be two months for the landlord and one month ending at the end of a rental period (sounds like the 9th of the month) for you).
            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


              #7
              Originally posted by jpkeates View Post
              Check your tenancy agreement.

              Most agreements contain a fixed term - which is defined as a something like "a term of 12 months commencing on xx/xx/xxxx and ending on yy/yy/yyyy".
              That would indicate that the tenancy ends automatically on yy/yy/yyyy and the agreement (and all of its terms) ends with it.

              Sometimes (although rarely), the agreement contains a different wording, which indicates that the agreement doesn't have a fixed term and continues after the initial term. The wording isn't easy to give a simple example of, but would usually contain text such as "starts on xx/xx/xxxx and, after an initial term of y months, continues on a monthly basis on the same terms."
              I've just checked it it says
              Term
              1.6.1
              The term shall be from and including {10/02/2017} to and including {09/02/2018 and then monthly periodic}
              Please see paragraph 2.5 as it contains important information about what you must tdo to end the tenancy

              Everything in {} is in bold on the document. Does that change my position? :-/

              Comment


                #8
                Originally posted by amazondean View Post
                It is law that dictates that you can leave at the end of the tenancy without notice. No wording in a tenancy agreement can over rule this. Just tell them that.

                As they seem to not understand the law. Have they protected your deposit properly!
                Yes deposit is protected by the DPS.

                Comment


                  #9
                  It's never easy to be 100% sure about legal wording, but I'd say that's a fixed term - there's a term from and to a date.
                  The bit about then monthly simply states the legal position.

                  Unless the agent starts trying to tell you it's a contractual periodic tenancy (as opposed to a periodic tenancy or a statutory periodic tenancy) I wouldn't even worry about it and leave at the end of the fixed term as you plan.

                  Just for the avoidance of doubt, you don't have to leave when the fixed term ends - a new month by month tenancy is automatically created, soy you can stay where you are if you want to.
                  When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                  Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                  Comment


                    #10
                    Originally posted by jpkeates View Post
                    It's never easy to be 100% sure about legal wording, but I'd say that's a fixed term - there's a term from and to a date.
                    The bit about then monthly simply states the legal position.
                    I don't agree (or at least, I'm well short of being 100% sure). On the plain words, the term is open-ended, but has a minimum duration. For it to be a fixed term, it must have a definite end, but doesn't.

                    Comment


                      #11
                      I agree with jpk:

                      As to the right of the tenant to leave without giving notice by the end of fixed term see the experts, Shelter, at Shelter Legal here...
                      http://england.shelter.org.uk/legal/...hold_tenancy#0
                      - they cite those two well known cases Right d. Flower v. Darby (1786) & Cobb v Stokes (1807)
                      - but also note their comments on contractual tenancies.

                      Not I,not the agent, not jpk, not stuart can rule definitely if it is a contractual tenancy on not (I think it isn't). The only way to find out for sure is if it ends up in court and a judge rules: This would only happen if tenant leaves, all his goods removed, keys returned/left by end of fixed term then landlord/agent sue tenant for unpaid rent (unlikely realistically). That agent/landlord's solicitor says it is contractual doesn't necessarily mean it is.

                      So, leave by end of fixed term (usually 23:59 on last day). Make sure keys returned (eg shove through agent's letter-box, take photo, with witness, by 23:59. And have taken LOADS of not-very-high-quality {...think about it...} photos of the interior & exterior to show no damage, again ideally with witness & date/time stamped.

                      Or, as pointed out, you are entitled to stay, landlord or agent cannot (may not, legally impossible) to prevent this happening, it becomes a periodic tenancy.
                      I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                      Comment


                        #12
                        The right of a tenant to leave at the end of a fixed term is well-established. Here, the term is not fixed. It is clearly intended that no new (statutory) tenancy will arise in month 13, as the continuation is expressly provided for, as is a mechanism to end the tenancy (which could have no effect in a statutory tenancy). The parties are free to agree on the basis for the tenancy, and I don't see what is unclear about what they have mutually agreed.

                        I do agree that a dispute could only be settled by litigation or arbitration.

                        Comment


                          #13
                          Originally posted by Hollymou12 View Post

                          I've just checked it it says
                          Term
                          1.6.1
                          The term shall be from and including {10/02/2017} to and including {09/02/2018 and then monthly periodic}
                          Please see paragraph 2.5 as it contains important information about what you must tdo to end the tenancy

                          Everything in {} is in bold on the document. Does that change my position? :-/
                          10/02/2017 to and including 09/02/2017 is the fixed term (12 months) IMO, but we do not know what paragraph 2.5 states.

                          Comment


                            #14
                            I think there's a CPT here.
                            I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                            Comment


                              #15
                              Originally posted by KTC View Post
                              I think there's a CPT here.
                              What is a CPT?

                              Comment

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