Would this clause in the Tenancy Agreement be enforcable?

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    Would this clause in the Tenancy Agreement be enforcable?

    Hi, looking for some advice.

    I'm about to move into a property, and the Tenancy Agreement says that if the tenant wishes to end the tenancy (after the fixed term of course), he must give 1 months notice. Nothing wrong there, I agree. But it also says that such notice must be given to end on the rent due date. So, for example, if you had a rent due date on the 22nd of each month, your 1 month notice must end on the 22nd of the month.

    Now I understand why this is done (makes it administratively easier rather than trying to calculate rent in a month where the tenant has ended the agreement halfway through that month). My problem is that I know for a fact, even right now, that I would not wish to move out on the 22nd of the month. My job is a placement that ends on the 1st November, and so I'd wish to move out pretty much on that day, or within 1 or 2 days after it.

    The issue is obvious- I don't really want to pay 3 weeks rent at the end of a tenancy when I'm not going to be using the property. Seems a bit much to me. Is such a clause in the contract even enforcable? (since I'm pretty sure the law just specifies 1 months notice and mentions nothing about the tenancy ending on a rent due date).

    I pretty much have to move into this place quickly to start work so I'm not really in a position to alter the terms, but if it's not enforcable to begin with, well, I guess I don't have to worry. Of course I could just end the tenancy of the 22nd of the prior month and stay in a bed and breakfast for a week until the placement ends, but that's a hassle and I don't really want to do that.

    Thanks for any help in advance.

    #2
    This is just a clarification of common law which dictates a tenancy can only end on the last day of a tenancy period.

    Your rent is sold in whole months, Baked beans are sold in full tins.

    If you buy a tin of beans but only want to use ½ of it, you can't not pay for the other half.

    Comment


      #3
      So the only recourse is to leave on the 22nd of the prior month and stay in a bed and breakfast?

      Comment


        #4
        If a statutory periodic tenancy arises under s.5 Housing Act 1988 after the fixed term expires, then common law requirements apply in respect of a T's notice to quit. It must be at least one month long, and it must also expire at the end of a tenancy period (not the same as a rental period, but the two often coincide).

        For example, if the fixed term runs 22nd February 2013 - 21st February 2014, with rent due monthly, then the tenancy periods will run 22nd - 21st of the month commencing 22nd Feb 2014, and your NTQ would have to expire on the 21st of a month (as well as giving at least one month). This is regardless of whether rent is due on the 22nd or any other date.

        In the unlikely event that the contract creates a contractual (as opposed to statutory) periodic tenancy following on from the fixed term, then the provisions for notice would be whatever is specified in the contract. But, as I said, this is unlikely -

        It's sometimes the case that contracts are drafted by ignorant agents and sometimes they try to explain notice provisions in a statutory periodic tenancy (and get it wrong). But in any case, provisions for giving notice to end the tenancy in an expired fixed term contract do not carry through into a statutory periodic tenancy. See s.5(3)(3) HA1988 (linked to above).

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          #5
          Ask your landlord now if they will pro-rata the rent.

          I only hold tenants who are a real pain in the proverbial to what the landlord is entitled to in law.
          Especially if they give me more than the required notice.

          I make it clear that this is on the basis that they move out on the actual date agreed, and not on some informal rolling move-out date.
          Allow tenants to protect their own deposits. I want free money when they do it wrong

          Comment


            #6
            Originally posted by westminster View Post
            If a statutory periodic tenancy arises under s.5 Housing Act 1988 after the fixed term expires, then common law requirements apply in respect of a T's notice to quit. It must be at least one month long, and it must also expire at the end of a tenancy period (not the same as a rental period, but the two often coincide).

            For example, if the fixed term runs 22nd February 2013 - 21st February 2014, with rent due monthly, then the tenancy periods will run 22nd - 21st of the month commencing 22nd Feb 2014, and your NTQ would have to expire on the 21st of a month (as well as giving at least one month). This is regardless of whether rent is due on the 22nd or any other date.

            In the unlikely event that the contract creates a contractual (as opposed to statutory) periodic tenancy following on from the fixed term, then the provisions for notice would be whatever is specified in the contract. But, as I said, this is unlikely -

            It's sometimes the case that contracts are drafted by ignorant agents and sometimes they try to explain notice provisions in a statutory periodic tenancy (and get it wrong). But in any case, provisions for giving notice to end the tenancy in an expired fixed term contract do not carry through into a statutory periodic tenancy. See s.5(3)(3) HA1988 (linked to above).
            Ah, that's unfortunate then (well, it is for me anyway...). Will just have to find myself a B+B for the last week then (and give notice to leave for the 22nd October rather than 22nd November).

            I could always ask if they'll pro rata it but tbh it's not like they have any incentive to agree really.

            Comment


              #7
              Originally posted by Questioning View Post
              I could always ask if they'll pro rata it but tbh it's not like they have any incentive to agree really.
              LLs are generally flexible if you've been a good, reliable tenant. As a LL, so long as it doesn't leave me out of pocket, and I get a decent length of advance notice, and the T cooperates with viewings for replacement T, I wouldn't force a T to stick to the common law rules.

              Originally posted by Questioning View Post
              My problem is that I know for a fact, even right now, that I would not wish to move out on the 22nd of the month. My job is a placement that ends on the 1st November, and so I'd wish to move out pretty much on that day, or within 1 or 2 days after it.
              Well, then, why not negotiate a fixed term expiring on or just after 1st November? (You do not have to give any notice to end a fixed term tenancy; you can move out just before fixed term expiry - though of course it'd be polite to advise the LL in advance).

              Or alternatively, negotiate a shorter term that expires on or around the 1st - 3rd of a month.

              There is nothing to prevent you/LL agreeing, for example, a term commencing 22nd February up to and including 3rd September 2013. The term doesn't have to be an exact number of months. If a periodic tenancy then arose, it would commence on 4th September with tenancy periods running 4th - 3rd, and you could give notice between 4th Sept - 3rd October for the tenancy to end on 3rd November.

              Comment


                #8
                As other landlords here have said I'd likely be pretty relaxed about it.

                Originally posted by Questioning View Post
                I could always ask if they'll pro rata it but tbh it's not like they have any incentive to agree really.
                Well actually a lot of landlords and tenants tend to prefer a rent date early in the month rather than late, as it means it usually falls after payday, rather than just before; ie the rent standing order hits when the tenant's bank account is full, rather than empty! - obviously beneficial to both parties. If you were my new tenant, I would actually be suggesting to you that we sorted the dates out at the outset of the tenancy for this reason; have done so quite often in fact.

                Comment


                  #9
                  Originally posted by Ericthelobster View Post

                  Well actually a lot of landlords and tenants tend to prefer a rent date early in the month rather than late, as it means it usually falls after payday, rather than just before; ie the rent standing order hits when the tenant's bank account is full, rather than empty! - obviously beneficial to both parties. If you were my new tenant, I would actually be suggesting to you that we sorted the dates out at the outset of the tenancy for this reason; have done so quite often in fact.
                  Even if the landlord accepted a pro-rata for the period 22nd Oct - 3rd Nov, it doesn't meant the date the rent is paid would alter. I don't see why the landlord would, as the tenant is already in situ.
                  Allow tenants to protect their own deposits. I want free money when they do it wrong

                  Comment


                    #10
                    Originally posted by thesaint View Post
                    Even if the landlord accepted a pro-rata for the period 22nd Oct - 3rd Nov, it doesn't meant the date the rent is paid would alter.
                    Why not, if it's all spelled out in the agreement?
                    I don't see why the landlord would, as the tenant is already in situ.
                    No...

                    Originally posted by Questioning View Post
                    I'm about to move into a property

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