Notice required if leaving on last day of AST?

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    Notice required if leaving on last day of AST?

    Here's a question I have wondered about but never heard debated. And now it's relevant for me (so I should have asked earlier, natch!)

    - Property is in England
    - Deposit is protected in scheme within 2 days of start of tenancy and within 10 days of receipt
    - AST is signed and witnessed, fixed-term for 12 months from (let's say) 19th Oct 2015
    - Rent is paid monthly, on the first day of each month
    - AST states the following as an obligation of the tenant: "to give at least two months notice to quit expiring at the end of a period"

    If the tenant was to want to leave on the last day of the fixed term period of the AST (i.e. 18th Oct) then would they be obliged to give any notice at all, or could they walk out of the place some time on that day and consider the tenancy to have ended? (That's an extreme scenario, I admit. Whether they have to give any notice at all is the nub of the issue).

    If it is decided that they can leave with no (or very little) notice on the last day, what happens to the rent in that last month? If they have paid for the full month at the start of the month, what should be refunded? 13/30ths of the month's rent? (Based on the idea that 18 days of rent for a 31 day month are due, therefore 13/30ths should be refunded.) What if they haven't paid anything for that month - I presume that the shortfall (i.e. 18/30ths) should be claimed from their deposit?

    Thanks,


    Oli.

    #2
    Tenant can leave on last day of fixed term without notice, though it would be polite. Overpaid rent should be refunded though most rent due dates run in line with tenancy periods so I can't imagine the scenario happens too often.

    Comment


      #3
      My understanding is that tenant may leave with no notice at all:. If they do landlord may sue for (say) 2 months rent. (Breach of contract).

      I am unaware of this ever being done. Anyone know of such a case?
      I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

      Comment


        #4
        From a property law point of view the tenancy ends on the last day and the tenant is free to leave.
        The contractual position is different, but it would be an interesting claim to test any contractual notice period versus the tenancy position - there's no longer a tenancy, so the contract is in an interesting position.

        The rent and contract periods are meant to be aligned (not essential but this is why its good practice).
        If your agreement is for rent to be paid at the start of the month and the contract to run from the 19th to the 18th, that's a mess to begin with.
        Your query about rebates etc will depend on how the contract is worded.
        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

        Comment


          #5
          Originally posted by zcacogp View Post
          - AST states the following as an obligation of the tenant: "to give at least two months notice to quit expiring at the end of a period"
          This is nonsensical in relation to a fixed term tenancy.

          Comment


            #6
            Thanks for the answers - they are very helpful.

            elniinio, thanks, that's my understanding.

            ArtfulLodger, jpkeates, thank you, splitting 'tenancy' from 'contract' is a good way of looking at things. jpkeates, what's wrong with having a difference between a tenancy date and a rent date? Having the rents all paid at the same point in each month is an administrative convenience which is quite nice when you have several properties.

            jjlandlord, why is that phrase nonsensical in relation to a fixed term tenancy?

            Thanks again for input - it's all appreciated.


            Oli.

            Comment


              #7
              A fixed term tenancy has no period. A notice to quit applies only to periodic tenancy and ends the tenancy on expiry.

              A fixed term tenancy will end on expiry of the term, therefore however you look at it (contractual or tenancy) this clause is nonsensical.

              Comment


                #8
                Originally posted by zcacogp View Post
                jpkeates, what's wrong with having a difference between a tenancy date and a rent date? Having the rents all paid at the same point in each month is an administrative convenience which is quite nice when you have several properties.
                The example given is why. It creates uncertainty as to the period for which the rent is being paid. If the tenancy runs from 19th to the 18th and the rent is due on the 1st of the month, it isn't really being paid "in advance" and it isn't clear to what period the rent should be applied. Your question about a rebate confirms the confusion; if the tenant leaves at the end of a fixed term no rent rebate should be due.

                It gets much worse if you charge the tenant for the interim period (19th to the 1st).

                I have a number of properties and the rent is paid on a number of different dates and the additional admin burden is about ten minutes.
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #9
                  It is the advice of the government to the public, through the then Office of Fair Trading, that any contractual clause requiring a tenant to give notice to leave by the end of the fixed term is unfair and thus unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) (since replaced by the Consumer Rights Act 2015), since a fixed term tenancy automatically comes to an end through effluxion of time, and no statutory periodic tenancy would arise if the tenant have left.

                  I am unaware of any reported case that has tested this in court. The advice is over 10 years old and often repeated including by lawyers and housing professionals.

                  The LL should refund the overpayment, but the LL may try to play rough (if you're the tenant) if you hadn't given what they views is sufficient notice and your course of action would then be court.
                  I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                  I do not answer questions through private messages which should be posted publicly on the forum.

                  Comment


                    #10
                    Thanks for your answers. As it is, the tenant has decided to stay on and hence the issue is no more a problem. However I still have a question relating to the point below from jjlandlord:

                    Originally posted by jjlandlord View Post
                    A fixed term tenancy has no period. A notice to quit applies only to periodic tenancy and ends the tenancy on expiry.

                    A fixed term tenancy will end on expiry of the term, therefore however you look at it (contractual or tenancy) this clause is nonsensical.
                    My understanding is that the paragraph relates to what happens once the contract has rolled over to become a Statutory Periodic Tenancy, and the notice period that is then applicable. The statutory notice from a tenant is one month and hence this two month requirement is a contractual obligation rather than a strict legal obligation. However I add the caveat that I am not a lawyer and have posed the question to my lawyer, who drew up the contract for me.

                    Thanks again,


                    Oli.

                    Comment


                      #11
                      Such terms don't transfer to the periodic - see HA 1988 s(5)(3)(e)
                      http://www.legislation.gov.uk/ukpga/1988/50/section/5
                      I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                      Comment


                        #12
                        Originally posted by zcacogp View Post
                        My understanding is that the paragraph relates to what happens once the contract has rolled over to become a Statutory Periodic Tenancy, and the notice period that is then applicable. The statutory notice from a tenant is one month and hence this two month requirement is a contractual obligation rather than a strict legal obligation. However I add the caveat that I am not a lawyer and have posed the question to my lawyer, who drew up the contract for me.
                        Terms related to termination do not carry over from the fixed term tenancy to the Statutory Periodic Tenancy by statute. Therefore the term still has no value if the aim is to try to change the notice period in the Statutory Periodic Tenancy.

                        I'm hoping that your lawyer knows that.

                        Comment


                          #13
                          The following assumes we are talking about assured tenancies.

                          There are three possibilities:

                          (a) The tenancy is periodic from the outset. The parties are free to agree whatever period of notice they like, though the law prescribes a minimum period of four weeks. In the absence of any notice provisions the period of notice will be implied from the terms of the tenancy.

                          (b) The tenancy is for a fixed term without any provision for it to continue. As said above, such a tenancy ends when it ends and therefore needs no notice to end it. A requirement to serve a notice to quit is a requirement to do something impossible since notices to quit only apply to periodic tenancies. As jjl points out, a fixed term term does not have periods. "Periodic" and "fixed term" are in opposition. A requirement to give notice of an intention to leave is different. However, we may note that it has no effect. It does not end the tenancy and if the tenant stays on a periodic tenancy arises despite the service of the notice. If a tenant leaves before the end of a fixed term term without giving notice it has to be doubted that there any basis for action. For a start, a tenant cannot give notice until he forms the intention to leave, which he may not do until just before he leaves. Apart from that the bottom line is that the tenant only contracted for a fixed term. Section 5(3)(e) of the Housing Act 1988 says in respect of a statutory periodic tenancy 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."

                          (c) The tenancy is for a fixed term with a provision that it continues as periodic. The position is the same as in (a). The parties can agree whatever period of notice they like, subject to a minimum of four weeks. This is the sort of tenancy that should be granted by a landlord who wants to grant a fixed term and have notice to end it. It should though be noted that a term for "six months and thereafter from month to month" creates a term of at least seven months.

                          Comment


                            #14
                            But that Clause creates a CPT on expiry of fixed term as it imposes 2 month Notice period on T, rather than 1 month for SPT IMO.

                            Comment


                              #15
                              Chaps,

                              Thanks for the answers - they are all helpful and appreciated.

                              While I didn't have the answers from theartfullodger and jjlandlord at the time I spoke with the solicitor so I didn't press him directly on those points, he explained it similarly to the explanation in Point 3 ot lawcruncher's post; namely that as the AST is written such that it becomes a Periodic Tenancy upon expiry of the fixed term (with the phrase "and thereafter from month to month") then the terms of the Periodic Tenancy are as agreed between the landlord and tenant and, as long as they are not in breach of the law, the landlord can reasonably expect to rely upon them.

                              This raises the further question in my mind as to how an AST could be written such that it doesn't become a periodic tenancy upon expiry of the fixed term as I understood that they all did. Both Lawcruncher's post and my solicitor's comments however suggest that they don't. However this is a different question and not the point of this thread.

                              Mariner, what's a CPT? I'm assuming that SPT = Statutory Periodic Tenancy.

                              Thanks again,


                              Oli.

                              Comment

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