Tenancy agreement AST > Vacating Early terms - do they still apply under periodic?

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    Tenancy agreement AST > Vacating Early terms - do they still apply under periodic?

    DETAILS

    - AST in UK. Start date: 1st Sep 2010. End date: 31st Aug 2011
    - On 1st Sep 2011, T asks to stay longer, and whats to renew. I tell him no new tenancy required to be signed, as it will automatically become periodic, stating that all terms signed in initial AST still apply. which are:

    • 2 months notice

    Vacating Early: Strictly with the Landlord’s or his Agent’s prior written consent and subject to certain conditions that may include the Landlord’s reasonable costs associated with the re-letting of the premises (eg. advertising etc)

    Changing over of Tenants: They will have to pay £75.00 each towards the references and a new Tenancy Agreement has to be signed at a cost of £125.00

    ________________________________

    End of Jan 2012, T gives 2 months notice, but wants to move out within 1 month is he finds a suitable property beforehand.

    Question:

    Are the Vacating Early & Changing over of Tenants terms still applicable after 31st Aug 2011 on rolling/periodic tenancy? ie. is tenant still liable to cover reletting costs etc?


    -- Advice appreciated

    #2
    All terms signed in the initial AST do not apply. The notice provisions of san AST are specifically disapplied by the Housing Act 1988 when it turns periodic, so your tenant only has to give one months' notice. Your 'leaving early clause is therefore also not applicable. The 'Changing over of Tenants' clause is only applicable if a tenant wants to assign the tenancy in the middle of the term, not when the tenant wants to bring it to an end.

    So in summary none of these clauses are applicable and one months' notice is sufficient to end the tenancy.
    Disclaimer:

    The above represents my own opinion, derived from personal knowledge and should not be relied upon as definitive or accurate advice. It is offered free of charge and may contain errors or omissions or be an inaccurate opinion of the law. I accept no liability for any loss or damage suffered as a result of relying on the above.

    Comment


      #3
      When did the tenant vacate the property?

      Originally posted by bhaal View Post

      So in summary none of these clauses are applicable and one months' notice is sufficient to end the tenancy.
      Not necessarily.
      It depends when the notice was given.
      Allow tenants to protect their own deposits. I want free money when they do it wrong

      Comment


        #4
        Whether these terms still apply depends on whether the tenancy agreement is drafted such as the fixed term continues as a contractual periodic tenancy or not.
        It probably does not, in which case the tenancy is now a statutory periodic tenancy, and hence these terms no longer applies.

        Tenant served notice after expiry of the fixed term.

        Comment


          #5
          Section 5 of the 1988 Housing Actis what made the tenancy agreement a periodic one, and it says"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".

          So your tenant can only be obliged to give notice as per common law - which is a minimum of one months notice (on a monthly tenancy) and it must take effect on the last day of a tenancy period - which if rent is due monthly will be the last day of any month. So notice served today by the tenant will have an earliest determination date of 30th April 2012.

          Tenant is not liable to cover re-letting costs. He agreed to be resident up until 31/11/11 and he complied with that. After that it is your problem.

          Comment


            #6
            Originally posted by jjlandlord View Post
            Whether these terms still apply depends on whether the tenancy agreement is drafted such as the fixed term continues as a contractual periodic tenancy or not.
            It probably does not, in which case the tenancy is now a statutory periodic tenancy, and hence these terms no longer applies.

            Tenant served notice after expiry of the fixed term.
            Could you clarify what is deemed as a "contractual periodic tenancy"?

            And how would this be worded, and do you have an example?

            Is this complex, or simply an addition of an extra section?

            Any info/links appreciated

            Comment


              #7
              Originally posted by thesaint View Post
              When did the tenant vacate the property?



              Not necessarily.
              It depends when the notice was given.
              Date corrections:

              I checked the actual AST, the correct start date was the 6th Sept 2010, with an End date of 5th Sept 2011.

              I also checked my emails and T gave notice on the 6th or 7th of February 2012 (not End of Jan 2012 as above) by email: saying..

              Please accept this email as my formal 2 months notice to vacate. The notice will therefore expire on 5th April 2012.

              So I think he gave notice/sent the email on the 6th Feb.

              He left the property on the 29th Feb 2012.

              I advertised, he showed prospectives around and a new T signed on to take the room from the 1st March 2012.

              My terms for early release was as above, that they cover reletting costs and pay for the vetting/referencing and new TA of the new T.

              Did the T give enough notice?

              Comment


                #8
                When it is said that a specified period of notice is required it usually means that that is the minimum period of notice. Accordingly, if the tenant gave two months' notice he cannot argue that the tenancy comes to an end earlier if it suits his convenience. In other words, if the notice is valid the tenancy ends on the day the notice expires. Whether if you give a long period of notice you can trump it by giving a shorter period of notice is not a question I can answer.

                Comment


                  #9
                  Are you saying that your terms were:
                  If you want to leave on the 29th, then you pay my fees, otherwise you must stay until 5th April?

                  Did your tenants notice include the words 'The notice will therefore expire on 5th April 2012'?

                  Do you have (anywhere) the tenants acceptance of your terms - other than he contract, where the terms no longer apply?

                  Comment


                    #10
                    Originally posted by sparkie View Post
                    Could you clarify what is deemed as a "contractual periodic tenancy"?

                    And how would this be worded, and do you have an example?

                    Is this complex, or simply an addition of an extra section?
                    I'm not a legal expert, but from previous discussions on this forum, I would think it'd be a matter of defining the tenancy.
                    Perhaps something like "For a minimum term of 6 months, continuing as monthly periodic".

                    Drafting contracts is best let to professionals.

                    Comment


                      #11
                      Originally posted by jjlandlord View Post
                      Perhaps something like "For a minimum term of 6 months, continuing as monthly periodic".
                      We do not want the word "minimum" in there.

                      Originally posted by jjlandlord View Post
                      Drafting contracts is best let to professionals.
                      You've been paying attention. Gold Star!

                      Comment


                        #12
                        Originally posted by Snorkerz View Post
                        Are you saying that your terms were:
                        If you want to leave on the 29th, then you pay my fees, otherwise you must stay until 5th April?
                        That's what the agreement terms seems to state, yes.

                        Did your tenants notice include the words 'The notice will therefore expire on 5th April 2012'?
                        Yes, the exact words in his email notice were:

                        (email subject heading): "2 months Notice at <property address>"

                        "Please accept this email as my formal 2 months notice to vacate <property address>. The notice will therefore expire on 5th April 2012.

                        I am able to leave to the property on 1st March 2012, if you find a new tenant and you are willing to apportion the rent (as appropriate) it would be very much appreciated. Please feel free to advertise it from 1st March.

                        I have really loved living here as you know from my determination to always find secure and sound housemates for other vacant rooms. I have always treated it with the up most respect as I would my own home. You have been a fantastic landlord and it has been a pleasure to be your tenant in such a beautiful home. I will of course do my upmost to find someone to fill my room alongside your spareroom ad, and will help as much as I can for all the viewings as I have done before, as well as spread the word amongst my reliable and quiet colleagues & friends. It will be snapped up in days I'm sure.

                        Best regards,
                        <tenant's name>"

                        _________________________

                        I replied:


                        hi <tenant>,

                        we won't need agents if you able to do the viewings on a consistent basis throughout. if you're too busy then let me know.

                        regarding advertising/ reletting costs, reference & new tenancy agreement costs that need to be covered, this is outlined on page 16 of your Tenancy agreement.

                        a quick summary of likely costs:

                        advertising - 39.90
                        referencing - 75.00
                        new tenancy agreement - 125.00

                        trust this is now clearer

                        the ad will go up today..

                        regards
                        <LL's name>

                        ________________________


                        Do you have (anywhere) the tenants acceptance of your terms - other than he contract, where the terms no longer apply?
                        His reply:

                        "Thank you <LL's name>, understood.

                        Can i please ask you kindly that you ammend the spareroom ad, the correct current household ages are 24-30"

                        ________________________

                        With the above information, how do you view the situation, your thoughts?

                        Comment


                          #13
                          Just to repeat - once it is over, the terms regarding determination of the tenancy do not apply.

                          This is presumably a HMO (not a lodger is he?) so are all rooms let individually or is it a joint contract with all occupants on it?

                          I am confident that if the tenant were to refuse to pay, or subsequently to take the matter to court to recover his payment, he would win. That's not what he seems to be doing, so you may be fine. Although your prices for references etc are over-inflated, they are fine for a fixed term, but after the end of the fixed term, then tenant is not contracted to stay for any specific length of time, you can not charge them for leaving somewhere when they have no obligation to stay.

                          Surely, the cost of advertising, references etc is just a cost of business, and probably tax deductable at that? The tone of your tenants notice suggests he considers you to be a brilliant landlord, I am guessing you always speak to your tenants in a pleasant manner and deal with problems promptly, which is great, but if he (or any future tenant) actually knew what the were doing - it could prove 'interesting'. At 24-30 you would think at least one of them would have a brain

                          Comment


                            #14
                            Originally posted by Snorkerz View Post
                            Just to repeat - once it is over, the terms regarding determination of the tenancy do not apply.
                            Except the 1 months notice period. Which in this instance, the T left before the 1 month was up. Which is why I call into question that they are liable for mentioned costs for early release, albeit a few days, its technically before end of notice period required.

                            This is presumably a HMO (not a lodger is he?) so are all rooms let individually or is it a joint contract with all occupants on it?
                            Rooms let individually

                            Although your prices for references etc are over-inflated, they are fine for a fixed term, but after the end of the fixed term, then tenant is not contracted to stay for any specific length of time, you can not charge them for leaving somewhere when they have no obligation to stay.
                            The terms were most likely written specific to the fixed term - fair in my opinion for the amount of hassle and work to disrupt a 12 month fixed-term. After that, the agreement probably needs to be amended to reflect change of notice etc..

                            Surely, the cost of advertising, references etc is just a cost of business, and probably tax deductable at that?
                            Yes, it is. But during the fixed term it is normal to charge for these should the T want an Early release.

                            The tone of your tenants notice suggests he considers you to be a brilliant landlord, I am guessing you always speak to your tenants in a pleasant manner and deal with problems promptly, which is great, but if he (or any future tenant) actually knew what the were doing - it could prove 'interesting'. At 24-30 you would think at least one of them would have a brain
                            I'm professional and nice. I treat them better than the LL's I have had myself, and as I would want to be treated if I were a T.

                            I posted this to know where I stand as a LL from a legal perspective, and hence can move forward accordingly.

                            As the T left before their 1 month's notice period was up and they replied that they understood that leaving early was subject to payment of advertising etc.. shouldn't the T have to abide by this? And if this were to go to court/deposit adjudication, wouldn't the judgement/adjudicator's decision* reflect this?

                            *tempered with caution, as I have heard many times - they don't get it right!

                            Your sage advice appreciated!!

                            Comment


                              #15
                              Under normal circumstances I am sure judge/adjudicator would take into account that the tenant left before common law notice had been completed, and the tenant would be liable up until that point. However, as the room was re-let from 1/3/12, the tenant was no longer able to use the room that he is paying for from that date. I also think that even though the tenant 'agreed' at the point of giving notice, that it could be argued they agreed under duress.

                              I have no problem whatsoever with the terms in your contract for early release during the fixed term. You can charge what you like, it is not unreasonable to expect a tenant to stay for as long as they have agreed to stay.

                              My comment in th last post about you being a brilliant landlord was not meant to be sarcastic, however I have already been accused of being a grumpy git this morning, so I think I need to go and lie down in a dark room until I can write a little more clearly

                              I think, as new tenant moved in 1/3/12 the tenancy came to an end at that point and that pursuing for rent/notice beyond that point is destined to failure.

                              Comment

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