Moving Out - Pay Extra Months Rent vs Effluxion of Time

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    Moving Out - Pay Extra Months Rent vs Effluxion of Time

    Hi All,

    I have a situation that I hope you will be able to help me with.

    My partner and I are moving to a new property, but we didn't get confirmation that we were accepted for the new property until 8th February and our current tenancy runs out on 26th February. I notified the letting agent who looks after our rental on the 8th of February that we wanted to move out and not renew our current tenancy and asked them if we therefore had to move out on March 8th (a months notice) but they said that in fact our tenancy agreement states that we must give notice of at least a month and it must be the day before our rent is due, which unfortunately it does (image attached) and therefore our last day of tenancy would therefore be 31st March.

    I understand that this is right and proper, but it does put us in a situation whereby we will be paying almost a months rent extra for a property we won't be living in.

    Having searched the internet for a way around this I stumbled upon 'Effluxion of Time' which states that if you move out of a property BEFORE the tenancy expires and give the keys back you will no longer be liable for any rent as the tenancy will not automatically renew, as it would if you were still living in the property.

    My question is, based on our tenancy agreement, is this possible to enforce in this case? I don't mind too much paying the extra months rent, but of course I would rather not if possible.

    Thanks very much!

    Dave

    IMAG1268.jpgIMAG1269_1.jpg

    #2
    Just make sure you are out by 26th Feb and agent won't be able to do anything. (Assuming you won't need a reference.)

    Comment


      #3
      Thanks for the quick response!

      Would this cause any issues with getting our deposit back?...it's held with the TDS.

      Comment


        #4
        Be aware that opinion is divided on this issue. One view is that a contract term that obliges you to give notice to leave, when your tenancy was always stated to be for a fixed term (the end date of which is known at the outset), is unfair and unenforceable. However, reputable sources of advice, such as Shelter, state:

        You don't need to give your landlord notice that you will leave on the last day of your fixed-term agreement unless your contract says you have to.
        I'm not aware that the issue has ever been settled in a test case. Others may have additional information.

        Comment


          #5
          Originally posted by Eagle Beagle View Post
          Thanks for the quick response!

          Would this cause any issues with getting our deposit back?...it's held with the TDS.
          I think they would have a job to persuade the adjudicator that a further month's rent was due.

          Comment


            #6
            Originally posted by JK0 View Post
            I think they would have a job to persuade the adjudicator that a further month's rent was due.
            That's probably true, but by leaving without the agreed notice (and you did agree it) is a breach of your tenancy contract, and the landlord might sue you for the rent. Whether he'd win is another matter.

            Comment


              #7
              Hmm, not cut and dried then...

              Rereading the clause it states "You must give us at least one months notice in writing when you want to end the tenancy" - surely though the tenancy comes to an end on a stated date...February 26th and therefore we do not need to give notice to end the tenancy as it automatically ends on it's own and there is therefore no tenancy to end...as it has already come to an end?

              Comment


                #8
                Originally posted by Eagle Beagle View Post
                Hmm, not cut and dried then...

                Rereading the clause it states "You must give us at least one months notice in writing when you want to end the tenancy"
                This wording is definitely cut and dried.

                The notice is specifically to end the tenancy. If it is allowed to be served during the tenancy then it is a break clause. Otherwise it is useless since the tenancy will indeed end by effluxion of time at the expiry of the term whether you give not or not. ( I am assuming, though, that the tenancy is indeed a standard fixed term one).

                Comment


                  #9
                  Originally posted by Eagle Beagle View Post
                  Hmm, not cut and dried then...

                  Rereading the clause it states "You must give us at least one months notice in writing when you want to end the tenancy" - surely though the tenancy comes to an end on a stated date...February 26th and therefore we do not need to give notice to end the tenancy as it automatically ends on it's own and there is therefore no tenancy to end...as it has already come to an end?
                  It is cut and dry. So long as you leave before midnight on the 26th of February it ends. No notice is required no matter what it says in the agreement.

                  But if you stay even a minute after that day, you may find you have to stay another two months (as you cannot give notice on your periodic tenancy until it has started (most probably), and that notice has to be one month.

                  You will have done nothing wrong. Your deposit (on at least these grounds) will be fine. If they take you to court they will be on rough ground - and if they win it will set a new precedent.

                  Your tenancy agreement by the way is odd (apart from the redundant notice clause). The tenancy month starts 27th of each month. They cannot simply shift it by 3 days (to the 31st) and create a new date of the 1st as the "legal" date.

                  Comment


                    #10
                    Originally posted by Eagle Beagle View Post
                    Rereading the clause it states "You must give us at least one months notice in writing when you want to end the tenancy" - surely though the tenancy comes to an end on a stated date...
                    FWIW, I agree with you. The words suggest that the tenancy will end because of some unilateral action by you (ie giving notice) - but it doesn't - it ends because the end date (which was agreed at the beginning) has arrived.

                    As a matter of law, the tenancy definitely ends if you have given up possession before the end of the last day. The landlord does face inconvenience and may suffer some financial loss if he has no notice from you as to your intentions. But it was his choice to grant a tenancy of a fixed term and it ends when it ends.

                    You'd have to ask Shelter about the basis of their advice - and of course, you could do just that ...

                    Comment


                      #11
                      be sure that you get your money back for the days between 26th and 31st. You overpaid the first month, and can leave on the 26th. They cannot force you to pay rent until the 31st - just because..... (you overpaid the first month). I would take them to court over those few days if they refuse.

                      Perhaps the date change is a "trick" to force you into a periodic tenancy -- but it does not work as a trick.

                      Comment


                        #12
                        Originally posted by AndrewDod View Post
                        be sure that you get your money back for the days between 26th and 31st.
                        Surely, there's already a final period apportionment in the agreement extract posted?

                        Comment


                          #13
                          Thanks a lot for your input so far.

                          I did in fact just pay the £850 for the full month's rent this month, as at the time we were thinking we would stay put, but having found somewhere nicer we have decided to moveI should have just paid the £780 for the reduced time period but I wasn't thinking this would be an issue at the time. To be honest, i'm not bothered about the £70ish overpayment, but I will definitely bring it up with them when I inform them of our intentions to leave.

                          So in summary, we are lawfully able to move out before the 26th and not be liable for any more rent payments and we should be able to get the overpayment in rent back (but I don't mind them keeping that as a good will gesture if required, due to the lack of notice).

                          Are there any test cases or specific laws I can quote to them when I tell them of our intentions?

                          Thanks.

                          Comment


                            #14
                            There are two different elements of law applicable, property/land and contract (hence the different views stated).

                            Unless the wording of the contract elsewhere changes the sense of the part you have posted, your tenancy ends on 26th February, and you can leave on or before midnight on that date.
                            By not being there after midnight on the 26th a new, periodic, tenancy doesn't start, which is what would happen "normally".

                            The contractual position is different - you have agreed in your contract to give notice and will be in breach of that term.
                            The landlord will be entitled to compensation for any loss arising from your failure to perform your undertaking.
                            However, that doesn't mean they're entitled to another month's rent automatically - lost income isn't necessarily a "loss" and the costs of re-letting would occur naturally in this business, you have simply moved them forward a few weeks.
                            The landlord will probably try and claim the month's rent from your deposit, and your argument should be that, while they're entitled to cover any actual losses arising, there haven't actually been any.

                            The contractual issue is what I think leads shelter to give the advice that they do, but the tenancy position is well established - most student tenancies end like this, everyone just moves out after the academic year ends.
                            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


                              #15
                              Originally posted by jpkeates View Post
                              The contractual position is different - you have agreed in your contract to give notice and will be in breach of that term.
                              OP won't be in breach of anything.

                              Even if we admit that the clause is valid, it states that the tenant must give notice to end the tenancy, so that's a break clause. Since the tenancy is a fixed term tenancy and will end at the expiry of the term, the tenant does not need to serve notice in that case and isn't in breach for not doing so.

                              Comment

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