Can T leave at 1mth. notice if AST demands 2mths?

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    Can T leave at 1mth. notice if AST demands 2mths?

    In October 2006 my tenant moved in under an assured shorthold tenancy that I created using a common template.

    The contract states that we both (Tenant/Landlord) have a 2 month notice period.

    Today my I was informed verbally (not officially) that they will be serving me 1 months notice only and quote HousingAct88 and something along the lines that as the original contract was not renewed that the notice is only 1 month.

    I have had a search of the HousingAct88 and cannot find anything on this - can anyone shed any light on this.

    Thanks,
    LandlordX

    PS> Some extracts from the contract are below:


    ++ ‘the Term’ : six months from and including October 2006

    ++ The Landlord lets the House and the Contents to the Tenant for the Term

    ++ If at any time the Landlord : requires the House for occupation by himself or any members of his family; or wishes to sell the House with vacant possession; or has died and the Landlord’s Personal Representatives require vacant possession either to sell the House or so that it can be occupied by a beneficiary under the Landlord’s will or intestacy then the Landlord may terminate the tenancy by giving to the Tenant not less than two month’s notice in writing expiring at any time.

    ++ If at any time the Tenant wishes to terminate the tenancy, he may do so by giving the Landlord not less than two months’ notice in writing expiring at any time.

    ++ The Landlord notifies the Tenant that the Agreement is intended to create an assured shorthold tenancy within the meaning of Section 19A of the Housing Act 1988

    ++ The Landlord gives the notice required by Section 48 of the Landlord & Tenant Act 1987 that any notice to be given in connection with the Tenancy shall be deemed to be properly given if delivered by hand or sent by recorded delivery addressed:
    + if given to the Landlord to him by name at the address stated in the Schedule or to the Landlord’s Agent if his appointment has been confirmed to the Tenant by notice in writing at the address stated in the Schedule or
    + if given to the Tenant to him by name at the address of the House
    + If sent by post it shall be deemed to have been served not later than the first working day following the day on which it was posted. If delivered it shall be deemed served on delivery.

    #2
    Your tenant is correct. Since the ASt was allowed to become periodic, tenant may legally leave with one month's notice, irrespective of what the tenanacy agreement says.
    'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

    Comment


      #3
      The tenant is right. The answer is to be found in section 5 (3) (e) of the HA 1988:

      [A] periodic tenancy [arising under the Act] is one-

      [...]

      (e) under which[...]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.

      Comment


        #4
        Originally posted by mind the gap View Post
        Your tenant is correct. Since the ASt was allowed to become periodic, tenant may legally leave with one month's notice, irrespective of what the tenanacy agreement says.
        Note: The period of notice does in fact depend on how long each period of the periodic tenancy is:

        Weekly tenancy - four weeks' notice

        Fourweekly tenancy - four weeks' notice

        Monthly tenancy - one month's notice

        Quarterly tenancy - one quarter's notice

        Comment


          #5
          So what is the point of the 2month notice period then

          Thanks for your quick replies.

          Lawcruncher, can you put the terms in easy to understand english please as I have got a bit confused.

          Did we have a fixed term tenancy ?
          Is this the 6 months part ?
          When is this defined as coming to an end ?

          The tenancy was a short term assured tenancy with a 6 months 'term' - how do / have we defined the period of the tenancy ?

          1) What is the point in having the 2 months notice is this is not enforcable
          2) How can we ensure that it is enforcable in the future
          - do we need to sign a new contract each 6 months
          - if so this is a bit annoying as the benifits to both the LL & T of the 'rolling' 'contract are good.

          Thanks,
          Christopher

          Comment


            #6
            If your agreement was for a term of 6 months then it sounds very much like you had a 6 month fixed term tenancy agreement with your tenant which ends after 6 months.

            When the fixed term ends a statutory periodic tenancy arises. The terms of this tenancy are the same as the original tenancy except that no terms relating to how the tenancy comes to an end carry over.

            You would need to give your tenant a new fixed term agreement if you wanted more than 1 months notice.
            ****************************************

            If you are unsure about what to do seek professional Legal advice.

            Comment


              #7
              Originally posted by LandlordX View Post
              1) What is the point in having the 2 months notice is this is not enforcable
              2) How can we ensure that it is enforcable in the future
              - do we need to sign a new contract each 6 months
              - if so this is a bit annoying as the benifits to both the LL & T of the 'rolling' 'contract are good.
              1. The two-months-notice clause IS enforceable, but only if T serves it to terminate during the fixed term.
              2. New AST is not essential, when fixed term expires, if L and T are both prepared to allow a periodic statutory continuation tenancy.
              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
              4. *- Contact info: click on my name (blue-highlight link).

              Comment

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