Agency trying to enforce 2 months notice & trying to make me pay another months rent

[Ted.E.Bear]

They're also threatening me with a CCJ and are adding a 3% daily fee of £78 for each day it is not settled.

They are allowed to charge 3% per annum, calculated daily. i.e., 21p per day, not £78 per day.

This is (another) indication that the person writing this stuff does not have a clue about the law, but thinks they do.

[DPT57]

I’ve just moved out of a rented room in a house share.

I assume this means you have a room only tenancy rather than a joint tenancy with others?

[theartfullodger]

What jpk says.

[Emmzi22]

Thank you so much! jpkeates, you're a life saver.
I will email them this response and keep you updated.
I hope you have a wonderful afternoon

[jpkeates]

14.2 If the Landlord allows the Tenant to remain in the Property after the fixed Term has expired then a statutory periodic tenancy shall arise under section 5(2) of the Housing Act 1988. To end the periodic tenancy, the Tenant shall give the Landlord at least two month's notice in writing. The notice must end on the day before the rent is due.[/I]

Your contract after the fixed term has expired becomes a contractual periodic tenancy meaning the notice period is stipulated by the contract.

Dear Agent

I think you are making a fairly serious error in law here.
Section 5(2) Housing Act 1988 creates a Statutory Periodic Tenancy, a contractual periodic tenancy cannot be created by legislation in its current form.
A contractual periodic tenancy would be created by the wording of the contract (clues in the name) and the section you are quoting simply lays out the legal position in the absence of a contractual periodic tenancy.

The link you have sent me to support your case actually tells you the same thing.
"How do I spot the difference?
The first thing to do is read your tenancy agreement to see if a clause detailing the periodic tenancy exists. If one does, then it will normally be a contractual periodic tenancy.

If no clause exists, or the clause specifically states that the tenancy will be a statutory periodic tenancy or arise under Section 5 of the Housing Act 1988, then it will be a statutory periodic tenancy."

Also section 5(2)(e) of the Housing Act 1988 - states [/I][COLOR=#000000][I]under which, subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy.

All that tells me is that the person writing to you doesn't know what "determination" means in this context.

"Any term with makes provision for determination" means any term relating to how the contract is brought to an end, which means that the notice period of the contract is, very specifically, not carried forward into the periodic tenancy.

They're also threatening me with a CCJ and are adding a 3% daily fee of £78 for each day it is not settled.

You can't stop them threatening you with a ccj, but "harassment" is a useful word to use in response.

A 3% daily fee on the debt is both a prohibited payment (Tenant Fees Act 2019 - which limits any late payemt fee to the actual cost of the late payment, which, given that it's not actually due, is zero) and a penalty charge (because it's simply excessive).
Penalty charges are not legal in consumer contracts.

You might offer to pay a charge of two times the daily rent cost as "mesne profit" if you feel generous.

I think, at this point, I'd tell them that above, confirm that you do not intend to pay and invite them to see you in court, because no one in their right mind would want this response to be shown to another person.

[Emmzi22]

Thank you theartfullodger and jpkeates for your responses.

This was actually their response when I argued the contractual periodic tenancy.

"The website you sent doesn’t take into account contractual periodic tenancy which applies to your tenancy.

Here is what your contract says about your notice

14.1 If tenant wishes to leave on expiry of fixed term, at least a two month’s notice is required in writing. The notice must end on the day before the rent is due. By the end of the notice period granted by this Tenancy, the Tenant shall return the Property and the Contents to the Landlord in the condition required by this Agreement.

14.2 If the Landlord allows the Tenant to remain in the Property after the fixed Term has expired then a statutory periodic tenancy shall arise under section 5(2) of the Housing Act 1988. To end the periodic tenancy, the Tenant shall give the Landlord at least two month's notice in writing. The notice must end on the day before the rent is due.

Your contract after the fixed term has expired becomes a contractual periodic tenancy meaning the notice period is stipulated by the contract. In the contract it is stipulated by at least two months. Please see https://www.nrla.org.uk/resources/cr...odic-tenancies for more information.

Also section 5(2)(e) of the Housing Act 1988 - states under which, subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy. So the terms for ending your fixed notice is the same terms for ending your contractual periodic, which is again a minimum of two months.

With the above stated clearly you are still obligated to pay your lasts month rent which is in arrears, please settle today to avoid anymore charges. "

They're also threatening me with a CCJ and are adding a 3% daily fee of £78 for each day it is not settled.

[jpkeates]

The agent doesn't seem to think that, their response confirms that if rent is paid on the 26th, the tenant's move out date is the 26th of the next month.

As you presumably didn't pay rent on the 26th March, I'd ask them why on earth they think it's a contractual periodic tenancy when the agreement clearly says it isn't and, therefore, why they think the notice period in the contract is relevant any longer?

And see what they say.

Worst case, you "held over" for a day and they can claim compensation for that day, you aren't liable beyond that.
If they try that, come back and let us know.

[theartfullodger]

So it was periodic, periods 26th to 25th.

Valid notice (unless landlord/agent agrees shorter one) is MINIMUM of 1 month, expiring on end-of-period day.

When you gave notice 29th Jan what expiry date?? Hopefully not 26th but 25th March.


So moving out 26th |(rather than 26th) means another month's rent due. At least.

They should have told you this earlier but don't have to.

[Emmzi22]

Hi jpkeates , thank you for your response,

In regards to your question, the fixed term ended on 26th September 2020.

The definition of 'Term' is "6 months", from the start of the contract, which was 26th March 2020.

I've reviewed the document again, and it doesn't mention "continuing" anywhere else.

Yes, they responded to the notice by email in January, this was the response "Confirmed that I have received your notice to leave.
As per the notice period stipulated on your contract your last rental payment date is 26th of March 2021 and your last day of occupancy is the 26th of April 2021. "

I returned the keys to the room, took a video of it and the room in great condition and sent it to the Agent via whatsapp

[jpkeates]

When did the fixed term end?
What is the definition of "Term" in the agreement?
Does it say anything about the tenancy "continuing" anywhere else in the document?
Did the agent (or the landlord) respond to your notice in any way?
How did you return the keys?

I suspect that you're right, though.
For the avoidance of doubt:

14.2 If the Landlord allows the Tenant to remain in the Property after the fixed Term has expired then a statutory periodic tenancy shall arise under section 5(2) of the Housing Act 1988.

"allows the tenant to remain in the property" is a bit much, there's no way they can prevent you staying at the end of the fixed term if you want to.

To end the periodic tenancy, the Tenant shall give the Landlord at least two month's notice in writing. The notice must end on the day before the rent is due."

The Housing Act sets the period of notice and voids any terms in the tenancy agreement that refer to notice periods or the end of the tenancy, so this term is meaningless and redundant.

[Emmzi22]

Hi,

I have a question for a situation that I find myself in.

I’ve just moved out of a rented room in a house share. I gave my notice on the 29th of January 2021 and moved out by the 26th of March 2021. My rent is paid on the 26th of each month.

The contract states ‘"14.2 If the Landlord allows the Tenant to remain in the Property after the fixed Term has expired then a statutory periodic tenancy shall arise under section 5(2) of the Housing Act 1988. To end the periodic tenancy, the Tenant shall give the Landlord at least two month's notice in writing. The notice must end on the day before the rent is due."

The agency are now trying to make me pay another month’s rent even though I’ve now moved out and claiming even though the fixed term has ended, the contract is a “contractual periodic tenancy”

I have argued section 5 of the Housing Act 1988, which states that I legally only have to give 1 months notice.

I have also argued the Consumer Rights Act 2014(“CRA”), Section 62(4) of the CRA which states that: “a term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer.”

I want to know where I stand on this, as I can’t afford to pay rent twice at to different places.

Your help will be greatly appreciated