Notice prior to end of fixed term tenancy?

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    Notice prior to end of fixed term tenancy?

    Hey everyone,
    First of all - any advice on this is really appreciated. I know it's no substitute for paid legal advice, but I'm incredibly busy right now and any kind of advice on this is hugely appreciated so thanks for taking the time.

    Situation
    • Myself and a friend are professionals renting a residential property in London.
    • Our contract is a fixed term as specified in the TA with commencement date 29th August 2017 from & including expiry on 28th August 2018.
    • Our tenancy as specified in the TA is "References to the term or the tenancy include any extension or continuation, or any the tenancy statutory periodic tenancy which may arise following the end of the period set out in clause 1.8" (clause 1.8 is the commencement date and expiry date). There is no other reference to SPT in our TA, and TA explicitly states tenancy terminates on 28th August 2018 after a 12 month period
    We have served notice to our landlord on 16th August that we do not intend to continue our tenancy at the end of our fixed term agreement as we will not be in the country for the next few months, and will have vacated the property by prior to the 28th August.

    However, our landlord has now informed us that they are checking 'when our tenancy will end based on the termination clause', which is as follows:

    Either party may terminate this agreement by serving not less than Two calendar months written
    notice, such notice may be served at any time but will not expire before the minimum term of Twelve
    months has been completed from the date of commencement of the term hereof. On the expiry of
    such notice this agreement shall end but without any prejudice to any antecedent breach of the terms
    hereof by either party.
    I believe they are implying that we should have given notice two months before the end of our fixed term, and that are liable to pay rent until 16th October. My understanding of our contract was that we have a fixed term tenancy for the period explicitly specified, which means we are entitled to vacate before the end date (at which point our FTT would expire without turning into a SPT) without incurring further rent payments.

    I'm hoping that our landlord will just get back to us and tell us that this is fine, but the lettings agent we rented through were an absolute nightmare including phoning me 30m before key pickup on the first day of tenancy to inform me that we may not be able to move in 'for a few days', and informing me two days after being told twice our offer had been accepted (when I requested the TA to sign) that actually the landlord had received another offer for higher that they'd prefer to take instead (because apparently another staff member took an offer after telling us ours had been accepted) forcing us to re-offer at a higher price.

    I am very concerned that their advice to the landlord will be to force us to pay out as much as possible. Is this a problem if we did not give notice prior to the termination of out fixed-term contract?

    Any advice much appreciated.

    Questions from the sticky

    Q1 – Where is the rented property located (England / Wales / Scotland / N Ireland)?

    England

    Q2 – What type of Tenancy Agreement (TA) is this e.g. sole tenant / multiple tenant / room only?

    Multiple tenant

    Q3 – What date did current TA start dd/mm/yy?

    Commencement Date: 29 August 2017
    From & Including
    Expiry Date: 28 August 2018

    Q4 – How long was initial fixed term (6/12/24 months / other)?

    Initial term of the tenancy will be: 12 Months

    Q5 – Does the TA state that rent is due weekly? / 4-weekly? / per calendar month (if so, on what same date each month)?

    Rent is payable in advance and is due upon the 29th day of each rental period without deduction

    Q6 – Did the TA require a tenant damage deposit to be paid? If so, on what date was this paid (dd/mm/yy)?

    A SECURITY DEPOSIT of £ 2,167.00 (Two Thousand One Hundred and Sixty Seven Pounds) is to be paid on or before the signing of this agreement to the landlord
    (done)

    Q7 – If your query relates to a notice for repossession from the landlord (a Section 8 or Section 21 notice) or a tenants's notice to quit to the landlord, please provide the exact date the notice was sent/received (dd/mm/yy).

    N/A

    Q8 – Does the landlord live in the same property as the tenant?

    No

    #2
    Unless the tenancy agreement contains specific text to continue it beyond an initial term (which seems very unlikely from what you've posted),
    the tenancy ends on 28th August.
    If you have moved out before that date, no new tenancy will arise and you can't be charged any more rent etc.

    There's no need to give notice to leave as you intend to, you are basically just keeping people informed of your intentions.
    No term about notice is applicable, because no notice is needed - the tenancy just ends.
    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


      #3
      if it's all as you have said then you can leave on or before the last day of your fixed term without notice. Any clause in the agreement requiring notice to end this will have no effect. If your landlord is checking then he will also discover this. Come back to us if he says anything different

      Comment


        #4
        Originally posted by jpkeates View Post
        Unless the tenancy agreement contains specific text to continue it beyond an initial term (which seems very unlikely from what you've posted),
        the tenancy ends on 28th August.
        If you have moved out before that date, no new tenancy will arise and you can't be charged any more rent etc.

        There's no need to give notice to leave as you intend to, you are basically just keeping people informed of your intentions.
        No term about notice is applicable, because no notice is needed - the tenancy just ends.
        Hey jpkeates,
        Thank you very much for the prompt response - really appreciated.

        For the record, this is the terminology of the duration of our fixed term (clause 1.8):

        Initial term of the tenancy will be: 12 Months

        Commencement Date: 29 August 2017
        From & Including

        Expiry Date: 28 August 2018
        From & Including
        The only reference of SPT of any kind are set in the initial terminology section, defining "the term / tenancy" as:

        References to the term or the tenancy include any extension or continuation, or any
        the tenancy statutory periodic tenancy which may arise following the end of the period set out in clause 1.8
        This is the only mention of any kind of changes on the anniversary of the contract:

        Rent Review: It is agreed that the rental as defined in Clause 1.9 of this agreement will be reviewed
        on its anniversary and any subsequent anniversaries in line with current market condition
        comparable’s subject to a minimum of 0% and a maximum of 7%
        And this is the only section in our TA relevant to surrendering the tenancy:

        Surrender of the tenancy by the tenant
        5.5 Either party may terminate this agreement by serving not less than Two calendar months written
        notice, such notice may be served at any time but will not expire before the minimum term of Twelve
        months has been completed from the date of commencement of the term hereof. On the expiry of
        such notice this agreement shall end but without any prejudice to any antecedent breach of the terms
        hereof by either party.

        5.6 Strictly with the landlord’s or his agents prior written consent and subject to certain conditions that
        may include the landlord’s reasonable costs associated with the re-letting of the premises, the tenant
        might be allowed to surrender or give up this tenancy before it could otherwise lawfully be ended.

        5.7 Any notice to be given herein shall be deemed to be properly given if sent by Registered post or
        Recorded Delivery, first class post, or by hand addressed, if given to REDACTED, on behalf of the
        Landlord REDACTED or if given to
        the Tenants, to them by name at the address of the Property and if so the Notice shall be deemed to have
        been served not later than the first working day following the day on which it was served unless shown
        to the contrary or if served by first class post deemed served on the second working day.
        Hopefully the landlord will just get back to us notifying us that we're correct in moving out at the end of the tenancy.

        Best,
        Fouldini

        EDIT: And thanks to you too, DPT57

        Comment


          #5
          I'd make sure you have lots of photos of the property if the landlord is going to do a check out after you've left.

          The landlord may not agree - but they'll be wrong
          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 jpkeates View Post
            I'd make sure you have lots of photos of the property if the landlord is going to do a check out after you've left.

            The landlord may not agree - but they'll be wrong
            (1) Aha, don't worry, we're well versed in this after a previous landlord tried to charge us £450 for cleaning after we'd already had a house professionally cleaned. Curiously, they also owned the cleaning company that they claimed the invoice was from...

            (2) Got it. Again, much appreciated. I'll let you know their response.

            Thanks once again to everyone for advice.

            Comment


              #7
              Some pretty rough legal drafting here.

              Comment


                #8
                Originally posted by Lawcruncher View Post
                Some pretty rough legal drafting here.
                Yeah we thought the same when we were reading the contract initially. Whole experience with this letting agents was beyond terrible - culminating in the landlord not being told we'd moved into the property and turning up on the second day of our tenancy unannounced because the lettings agents "didn't know" if we'd been given keys as they handled that through a third party.

                Comment


                  #9
                  Clues in "hereof".

                  "Better make it sound more legal, stick in a hereof and change prior to antecedant"
                  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
                    Have just heard back from our landlord who copied the following from the lettings agent and informed us we will be required to pay rent until 16th October...

                    Dear X

                    Thank you for your email.

                    I can confirm that the tenants are required to serve two months’ notice to vacate the property.

                    Kind regards

                    Y

                    Comment


                      #11
                      Don't worry about it. Just leave before or by the last day. If the landlord/agent refuse to accept keys, post it through the postbox and send them a message telling them you have done so.

                      Feel free to check with Shelter etc., and/or tell them to take advice. A fixed term tenancy ends by effluxion of time when its term is up, it's not dependent on notices.

                      If the clause had said something along the line of you must give X amount notice if you don't intend to stay on or penalty may be arguable for a penalty, even then the tenant can argue unfair term under consumer laws. Here, the clause appears to me to be entirely about notice to terminate the agreement, so no.
                      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.

                      I do not answer questions through private messages which should be posted publicly on the forum.

                      Comment


                        #12
                        Originally posted by KTC View Post
                        Don't worry about it. Just leave before or by the last day. If the landlord/agent refuse to accept keys, post it through the postbox and send them a message telling them you have done so.

                        Feel free to check with Shelter etc., and/or tell them to take advice. A fixed term tenancy ends by effluxion of time when its term is up, it's not dependent on notices.

                        If the clause had said something along the line of you must give X amount notice if you don't intend to stay on or penalty may be arguable for a penalty, even then the tenant can argue unfair term under consumer laws. Here, the clause appears to me to be entirely about notice to terminate the agreement, so no.
                        Really appreciate the advice KTC, many thanks.

                        Just one thing to note, LandlordZone main website section on ending a tenancy specifies:

                        At the end of the fixed term the tenancy ends and under statutory rules there is no stipulation that the tenant must give notice. The tenant can leave without giving notice, providing they leave before or on the last day of the tenancy. However, if the contract stipulates a formal notice period then the tenants should comply with this.
                        The key note here being 'if the contract stipulates a formal notice period then the tenants should comply with this'. I am by no means an expert, and truly appreciate all the advice from everyone, but doesn't this conflict with advice here? Or is it a case of 'should as a matter of courtesy' rather than 'should because you must (legally)'?

                        Once again, thank you everyone. I really did not expect this kind of swift response to my questions, and I'm sure answering questions here is often thankless so, it's very much appreciated.
                        Ending an Assured Shorthold Tenancy must be handled with care, otherwise costly delays are likely.

                        Comment


                          #13
                          There's different considerations when we're talking about tenancy. As a simple matter of landlord and tenant law, the tenancy will end by effluxion of time because the term is up. If the tenancy is assured (including shorthold), then a (new seperate) periodic tenancy may arise by virtue of the Housing Act 1988 depending on how the fixed term tenancy has been ended. It is the accepted interpretation that where the tenant (all if there's joint tenants) give up possession by the end of the fixed term, no periodic tenancy will arise. So as a matter of landlord and tenant law, there's no longer a tenancy, there can be no rent you would be liable for.

                          Now, your tenancy agreement is also a contract between you and the landlord. If you have agreed with the landlord that you will give notice of your intention to leave or stay beyond the fixed term, and you then don't do it, you would be in breach of contract. If you're in breach of contract, the other party can sue you for damages. Now, just because a clause exist within the contract doesn't mean it's necessarily enforceable. Of relevance here is consumer laws and unfair terms in contract. An unfair term is not legally binding on consumers. The law on unfair contract terms apply to short term tenancy agreements. Back in the days of Office of Fair Trading, they published a document giving their opinion that any clause requiring a tenant to give notice at the end of the fixed term is unfair. I'm not sure if this has ever been tested in reported cases in court, but it's certainly a consideration to keep in mind.

                          Here, the clause is about requiring notices to end the tenancy. The tenancy is 12 months. How can there be an enforceable clause requiring notice which cannot expire before the 12 months is up? Like Lawcruncher said, overall the contract you have was shoddily drafted.
                          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.

                          I do not answer questions through private messages which should be posted publicly on the forum.

                          Comment


                            #14
                            There are (broadly) three branches of law relating to tenancies - property (land), contract and consumer.
                            The property law part is quite clear - you can leave on or before the last day of the fixed term and you'll be fine.

                            The contract position isn't as clear, because you've signed the contract and agreed to give notice.
                            So if you don't, you're essentially in breach of that contract term.
                            But the breach is immaterial, there's no loss to the landlord and the practice of leaving at the end of a fixed term is well established.
                            It's just how fixed terms work.

                            The landlordzone advice is technically correct, but (in this case) misleading.
                            If you were looking for advice about speeding, the police would advise never doing 31 in a 30.
                            Which is technically correct, but practically worthless - if you do, nothing will happen as a consequence (even though "technically" it could).
                            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


                              #15
                              Never mind, KTC has expressed it better than me!
                              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

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