Advice needed on complicated situation

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  • #16
    Originally posted by westminster View Post
    What date in March did the fixed term commence, and does the contract specify an 'end' date?
    Does the contract say that rent is payable monthly?
    What date did the T give notice and what date does it expire?

    Note, provisions for giving notice to end the tenancy in the fixed term contract do not carry through into a statutory periodic tenancy, i.e. the four weeks doesn't carry through, and statutory notice periods apply.

    Although one joint T's notice to quit in a periodic tenancy will effect the legal end of the whole tenancy, for everyone, I'm fairly sure that that's not the case if the notice given is defective (the LL may accept a defective notice only if it's a sole tenancy).
    Just looking through the agreement and found this:

    2.5 Ending the Tenancy

    2.5.1 If the Tenant intends to vacate at the end of the fixed term, or at any later date, he agrees to give the Landlord at least one month’s prior Notice in writing. He spoke to me on the phone prior to the end of the previous month, however he only sent the email on the 12th (agreement goes from 10th-9th each month). I said over the phone it should be ok to just mention in the email something along the lines of "As agreed verbally, i'm giving you 4 weeks notice effective from the 10th February." because as far I was concerned, the verbal notice was binding. This was before I went through the Tenancy Agreement and saw that it stated "In Writing", hence why I told him to follow up with the email. My inexperience and naivety could come back to haunt me here!

    2.5.2 While the tenancy is periodic the one month's written Notice must expire the day before a Rent Due Date. Could this bit going to cause me problems because of the one day difference if the wife wants to take things legal?

    Comment


    • #17
      Originally posted by westminster View Post
      What date in March did the fixed term commence, and does the contract specify an 'end' date?
      Does the contract say that rent is payable monthly?
      Originally posted by Old Kent Road View Post
      (agreement goes from 10th-9th each month)
      So are we to guess that the fixed term commenced 10th March 2012 and expired 9th September 2012 and rent is payable monthly?

      Originally posted by Old Kent Road View Post
      2.5 Ending the Tenancy

      2.5.1 If the Tenant intends to vacate at the end of the fixed term, or at any later date, he agrees to give the Landlord at least one month’s prior Notice in writing.
      This clause was never enforceable in the first place, except in the unlikely event that the contract specifies that a contractual periodic tenancy will follow the fixed term (I mean, as opposed to a fixed term which is then replaced by a statutory periodic tenancy after fixed term expiry). Nothing you have said suggests that this was anything other than a standard six month fixed term contract.


      Originally posted by westminster View Post
      What date did the T give notice and what date does it expire?
      he only sent the email on the 12th (agreement goes from 10th-9th each month). I said over the phone it should be ok to just mention in the email something along the lines of "As agreed verbally, i'm giving you 4 weeks notice effective from the 10th February."

      Are we to guess again that the notice sent by email on 12th February expires 9th March? The date of service cannot be backdated. The date of service is also not included in the notice period. If my previous guess is correct with regards to the tenancy start/end dates & rent payable monthly, then the earliest that a NTQ given on 12th March could expire would be 9th May 2013, because in a statutory periodic tenancy the T's notice must be at least one month long (if rent is payable monthly), and must also expire at the end of a tenancy period (i.e on the 9th of a month).

      because as far I was concerned, the verbal notice was binding.
      It wasn't.

      2.5.2 While the tenancy is periodic the one month's written Notice must expire the day before a Rent Due Date. Could this bit going to cause me problems because of the one day difference if the wife wants to take things legal?
      In a statutory periodic tenancy, there are legal requirements for a T's NTQ (outlined above). It's irrelevant what it says in the contract. It's not the contract which makes the T's notice invalid, but the fact that it doesn't comply with the legal requirements.

      I reiterate, if one joint tenant serves a defective notice to quit to end the tenancy, then it is highly arguably as to whether the non-notice-serving joint tenant is bound by the defective notice. In other words, you could well have problems unless you get the husband to serve valid, written notice, of the correct length and expiring on the correct day.

      Perhaps "problems" isn't quite the right word, however. If we assume that the husband's notice as is doesn't end the tenancy at notice expiry, then all that happens is that the joint tenancy remains in place with both husband and wife liable for rent. The problems arising from this will be in terms of pursuing him and/or her for unpaid rent if he stops paying after he moves out.

      It's 'cleaner' if he serves valid notice that inarguably ends the tenancy. Then, after his notice expiry, if the wife doesn't also move out, then you can treat her as a trespasser and apply for a possession order on that basis.

      Comment


      • #18
        Thanks for that, a very informative post.

        The original contract was indeed a standard six month fixed term contract.

        Towards the end of the fixed term, I sent the following email, specifically stating I'd be happy to carry on the agreement with the 4 week notice period. Would this not 'override' the statutory 1 month notice period (and keep in mind, the original Fixed Term Contract did specify a 4 week notice period rather than 1 month)?

        "Hi T, your initial six months tenancy agreement is up in a couple of weeks. Will you be wanting to extend past then? I'm happy keeping it going on a month by month basis with 4 weeks notice given if that suits you?"

        The T responded to that to say they were happy to keep paying on that basis, so I naively thought at the time that all my bases would be covered under the existing contract terms.

        Comment


        • #19
          Originally posted by westminster View Post
          I'm not sure what your point is.

          OP says: "The tenancy agreement drawn up by the estate agents I used specified 4 weeks notice as opposed to one month's notice."

          And: "He has moved out and has provided me with 4 weeks notice on the contract."

          He seems to believe that this provision for four weeks' notice in the expired fixed term contract still continues to apply in the statutory periodic tenancy (which arose after fixed term expiry).

          But the provision doesn't carry through, because s.5(3)(e) Housing Act 1988 says:

          (3)The periodic tenancy referred to in subsection (2) above is one—
          ....
          .....
          (e) 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.
          It may be wrong, but my point is this.
          The landlord has stated that the tenant can give 4 weeks notice. You seem to be saying that if the tenant gives 4 weeks notice it is invalid.
          4 weeks notice is better than the statutory requirement of "at least a months notice expiring..."

          Let's say the tenant gave a landlord 4 weeks notice, and moved out. The landlord then went to court and applied for rent arrears that accrued to the end of the normal statutory notice period.

          It is my belief that the landlord would not win.
          Allow tenants to protect their own deposits. I want free money when they do it wrong

          Comment


          • #20
            Any such clause regarding termination that might be in fixed term tenancy agreement no longer apply in SPT.
            So landlord just needs to point out that fact by quoting HA 1988 s.5(3)(e).

            However, reading this:
            "Hi T, your initial six months tenancy agreement is up in a couple of weeks. Will you be wanting to extend past then? I'm happy keeping it going on a month by month basis with 4 weeks notice given if that suits you?"

            The T responded to that to say they were happy to keep paying on that basis, so I naively thought at the time that all my bases would be covered under the existing contract terms.
            I would argue that there is no SPT and that by the above a new contract for a contractual periodic tenancy with a 4 week notice period from tenant was agreed orally.
            It might not be easy to prove, though, if no-one followed up in writing to confirm this agreement.

            Comment


            • #21
              Originally posted by jjlandlord View Post
              Any such clause regarding termination that might be in fixed term tenancy agreement no longer apply in SPT.
              So landlord just needs to point out that fact by quoting HA 1988 s.5(3)(e).
              I understand that.
              A tenant cannot
              Allow tenants to protect their own deposits. I want free money when they do it wrong

              Comment


              • #22
                Originally posted by thesaint View Post

                Let's say the tenant gave a landlord 4 weeks notice, and moved out. The landlord then went to court and applied for rent arrears that accrued to the end of the normal statutory notice period.

                It is my belief that the landlord would not win.
                I would agree if this were a sole tenancy, as OP has clearly accepted the defective notice.

                However, you seem to be forgetting that the issue here is that it's a joint tenancy, where the husband has given notice and moved out, and the wife (a 'foreign national' with no income) remains, with apparently no plans to move out.

                If the husband's notice is defective, it is arguably not binding on the wife-JT, in which case the tenancy wouldn't end. If it is binding on the wife-JT, then on notice expiry the whole tenancy ends, and OP could treat her as a trespasser and apply for a possession order on that basis.

                Comment


                • #23
                  Post #21 seems to have not gone through correctly. Please ignore
                  Allow tenants to protect their own deposits. I want free money when they do it wrong

                  Comment


                  • #24
                    Originally posted by jjlandlord View Post
                    I would argue that there is no SPT and that by the above a new contract for a contractual periodic tenancy with a 4 week notice period from tenant was agreed orally.
                    It might not be easy to prove, though, if no-one followed up in writing to confirm this agreement.
                    Even if one could succeed in arguing that husband-JT and LL orally agreed a contractual periodic tenancy to replace the fixed term tenancy, what about the wife-JT? It would require both JTs to agree, not just one.

                    Comment


                    • #25
                      Originally posted by westminster View Post
                      Even if one could succeed in arguing that husband-JT and LL orally agreed a contractual periodic tenancy to replace the fixed term tenancy, what about the wife-JT? It would require both JTs to agree, not just one.
                      Unless she would come forward and say that she never agreed to a shorter notice period, which is to her advantage, I don't think this is an issue. She can just confirm that she agreed.
                      Issue is that there is no evidence.

                      Comment


                      • #26
                        Originally posted by jjlandlord View Post
                        Unless she would come forward and say that she never agreed to a shorter notice period, which is to her advantage, I don't think this is an issue. She can just confirm that she agreed.
                        Issue is that there is no evidence.
                        The issue is whether or not husband-JT's notice is binding on wife-JT.

                        It is not to her advantage if it is, because she will be immediately exposed to eviction after husband-JT's notice expires.

                        Husband-JT's notice is unquestionably defective if the tenancy is an SPT, not the purported contractual periodic tenancy to which wife-JT did not expressly agree.

                        Comment


                        • #27
                          Just a little follow up to this thread for closure.

                          I took the advice on board and served a Section 21. Ended up getting fooled into using one of the companies that appears near the top of the listings in Google thinking it would hold more weight, etc. After paying the unnamed band of numpties around £60 and having to argue the toss with them over poor English (they had addressed the letter to 'Dear Sirs', even though both male and female tenants had been reference above on the same page), it finally got served. If I ever find myself in a situation where I need to serve a Section 21 again, I will be doing it myself!

                          Once served, the female T who had been avoiding my calls and not responding to any of my texts or emails (regarding signing a new contract), decided to break 'radio silence'. I got bombarded with a string of angry messages. I think she misinterpreted the Section 21 as a forceful eviction, but as she ignored any of my invitations to discuss things in a civilised manner, I left her to it... and continued to receive angry messages. She even went as far as accusing me of harassment. Well, she sent me an email entitled "This is what you have done" with no message, but a screenshot of the definition of harassment. The wife and I had a little chuckle at that, as we've done no such thing.

                          She paid the first month's rent of the Section 21 notice period without issue. I thought things might have continued amicably. When she hadn't paid the 2nd month on time, I sent a text reminding her that the rent was due on the 10th and she was now in arrears. She apologised and said she would sort it out that day. She then followed up with another text to ask "shall I just pay for next month's rent on the 10th as well?" (ie: the day after the expiry of the Section 21). When I responded to clarify the purpose of the Section 21 and told her that she still needed to be out by 9th May, I received another barrage of abuse. She couldn't understand why I "still wanted her out" after she had proved the previous month that she could pay the rent.

                          Anyway, found out from a neighbour in the flats that they had seen her move out a week or so later. I went to check the mail at the flat (external mailbox in communal hallway) and found the keys in an envelope. Treading cautiously after reading some horror stories on here, I sent her an email to ask if she had returned the keys and to confirm that she had moved out. Thankfully she responded promptly to tell me she had moved out.

                          And as i'm sure you can all imagine, she did not leave the flat in the condition it was when she moved in!

                          Lesson learned! Thanks all for your advice.

                          Comment


                          • #28
                            In future, just ask us on here on how to serve a Sec 21. Do not pay for this service. Ever.
                            Minimal information is required, and we would have given everything you required in minutes.
                            Allow tenants to protect their own deposits. I want free money when they do it wrong

                            Comment

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