Moving Out - Pay Extra Months Rent vs Effluxion of Time

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  • JK0
    replied
    Well done. You were more polite (and achieved more) than I would have.

    Leave a comment:


  • jpkeates
    replied
    Good news.
    And thanks for taking the time to update us!

    Leave a comment:


  • Eagle Beagle
    replied
    Hi All,

    Many thanks for the information received in this thread, I sent the letting agent a long email stating that I wanted to vacate the property and my legal rights do so, the email is below. I also attached supporting documentation.

    I then got an email from the letting agent as below:

    Dear XXX,

    You are correct in your email below that you are permitted within your contract to leave at the natural end of the term without officially handing in notice; this is more of a contractual courtesy than a legal obligation.

    I will instruct XXX to market as soon as possible and for the check out to be completed once the keys are returned to XXX on 26th February.

    Kind regards,
    XXX


    My email to them...

    Thanks for your letter received this morning regarding check out of the property XXXX

    In this letter you have stated that we must adhere to a notice period which runs until 31/03/2017, but I have recently taken legal advice and found that this is not in fact the case.

    As we have an Assured Shorthold Tenancy which clearly states that it starts on February 27th 2016 and ends on February 26th 2017 we are therefore within our legal rights to leave before the tenancy ends with no obligation to give any notice, because the tenancy will come to it's natural end due to effluxion of time at midnight on Sunday 26th February 2017.

    You contacted us on February 6th to offer us a contract extension which we declined on February 8th and informed you that we would be moving out. We therefore feel that you have had a fair amount of time to mitigate your risk of potential rental losses by instructing a letting agent to market the property earlier than you have. Of course, had you contacted us earlier than 20 days before the end of the tenancy you would have had more time to market the property before we moved out. Saying that, it is a nice flat, in a good location, at a fair price and therefore I do not anticipate it taking very long for new tenants to take it.

    Please refer to the documents attached and the excerpts from these documents written below which state our legal rights and the fact that a fixed term contract cannot be extended beyond it's fixed term and that a tenant is not obliged to give any notice at the end of a fixed term contract in the form of an Assured Shorthold Tenancy.

    The Unfair Terms in Consumer Contracts Regulations 1999; specifically Regulation 5, Schedule 2, Clause 1.(h) states:

    "Automatically extending a contract of fixed duration where the consumer does not indicate otherwise."


    The Office of Fair Trading Guidance on Unfair Terms in Tenancy Agreements (OFT356), specifically clause 3.78 (attached separately) states that:

    "A tenant is not required to give notice to bring the tenancy to an end at the end of the fixed term. That is because a fixed term agreement comes to an end at the end of the fixed term, and no periodic tenancy will arise if the tenant then leaves. We appreciate that landlords will want to ensure that their properties are not left empty between tenancies, but object to terms that impose a contractual obligation on the tenant to give notice in order for the tenancy to be terminated at the end of the fixed term."

    We will therefore be vacating the property on Friday 24th February 2017 or Saturday 25th February 2017 and would be grateful if you could arrange for the check out to be performed on either of these days and inform us when is a suitable time for the check out to take place.

    We will either return the keys to XXXX or the person at check out (please let us know which you would prefer).

    Please do let us know how you would like to proceed and the best date and time for check out.

    Leave a comment:


  • Eagle Beagle
    replied
    Wright76,

    Thanks very much, we will certainly follow this advice should we go ahead with the early move out.

    Just to clarify - there is nothing in the contract which states that it translates into contractual on expiry or it being related to any break clauses and it is indeed a standard AST.

    Leave a comment:


  • Wright76
    replied
    It was always my understanding that any clause added to an AST cannot override the law.

    The law states that the tenancy ends on the date stated, and so by law no notice is required.

    I agree that including that sentence in the AST would only have a purpose if the AST also includes wording that moves the tenancy to contractual on expiry or if it related to a break clause.

    I would personally write, yes write, to the agent advising you have sought professional advice and you are aware that as the tenancy is legally ending you are not required to give any notice at all.

    ADvise that out of courtesy you are advising that the property will be vacant and keys will be returned. Request for an arrangement for checkout to be made in order that deposit can be returned timeously and that you also request return of your overpaid rent in apportionment.

    Leave a comment:


  • jpkeates
    replied
    Originally posted by StuartH View Post
    I wish I shared your certainties in life, but rather than explore flights of fantasy regarding break clauses, consider that the text here is directly under the heading "Giving notice at the end of the fixed term". That's what it relates to, and that is the term agreed by the tenant.
    If you read my initial response, I made the same mistake.
    While the term of the contract (and it's heading) are pretty clear, they can still be rendered invalid or made redundent by other clauses or circumstances.

    It is a commonplace that a tenancy ends at the end of the fixed term - it's possible there is other wording that would stop the lease having a fixed term, but if there is a fixed term, the tenancy ends when the fixed term does.

    It's not (particularly) helpful to question whether something has been tested in court.
    Generally, laws and conventions aren't tested in court, courts apply laws to specific sets of circumstances.
    Property cases are rarely reported because there's not much to be learned from them - pretty much every case is unique - virtually all tenancy agreements are different, some notices are only now becoming standardised.

    And shelter's advice page has other mistakes ("You must give notice if your agreement says:...when the fixed term expires the tenancy will continue as a periodic tenancy" is also not correct).
    And they're hardly unequivocal -
    "Disclaimer

    The information contained on this site gives only general guidance on the law as it relates to the countries of the United Kingdom. It should not be regarded or relied upon as a complete or authoritative statement of the law. It is your responsibility to check that the information applies to the country in which you live. If you think that you have a legal problem, you should get advice."

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  • jjlandlord
    replied
    Originally posted by StuartH View Post
    I wish I shared your certainties in life, but rather than explore flights of fantasy regarding break clauses, consider that the text here is directly under the heading "Giving notice at the end of the fixed term". That's what it relates to, and that is the term agreed by the tenant.
    I'd rather not report your posts to the mod, so please try to keep it civil and constructive.

    Originally posted by StuartH View Post
    Shelter's advice (and I'm not inclined to agree with them, as it happens) advise unequivocally on that specific scenario.
    Except it does not.

    Leave a comment:


  • StuartH
    replied
    jjlandlord,

    I wish I shared your certainties in life, but rather than explore flights of fantasy regarding break clauses, consider that the text here is directly under the heading "Giving notice at the end of the fixed term". That's what it relates to, and that is the term agreed by the tenant.

    Shelter's advice (and I'm not inclined to agree with them, as it happens) advise unequivocally on that specific scenario. Have you tested the proposition in court?

    Leave a comment:


  • jjlandlord
    replied
    Originally posted by StuartH View Post
    ... and yet Shelter's advice is unequivocal - although I don't agree with it - and none of us armchair lawyers have ever tested the proposition in court (AFAIK).
    And?

    Any advice must be based on the specific scenario.

    Here it is clear (assuming it is indeed a fixed term tenancy, as already said).

    Leave a comment:


  • jpkeates
    replied
    It would depend on what the tenancy agreement actually says.
    For example, tenant x may actually have an agreement that creates a contractual periodic tenancy, which wouldn't end, and tenant y might have different wording completely.
    Shelter offer advice blind on their website, and what they suggest is good practice - but is bound to be general.

    In this case, unless there's contradictory wording elsewhere, jjlandlord is correct, the tenancy ends on 26th February, and therefore the tenant doesn't need to give notice to end it.

    Speaking personally, I'm an armchair landlord.
    The difference between the property law I was taught and reality is huge.

    Leave a comment:


  • StuartH
    replied
    ... and yet Shelter's advice is unequivocal - although I don't agree with it - and none of us armchair lawyers have ever tested the proposition in court (AFAIK).

    Leave a comment:


  • jpkeates
    replied
    Originally posted by jjlandlord View Post
    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.
    You're right - I hadn't considered that.

    Leave a comment:


  • AndrewDod
    replied
    Even in contract law I think it dubious.

    The extent to which a contract can bind one to do something (in this case pay rent) beyond the contract.....

    Even if it is said that the tenant has to give notice, who is to say what the rent would be?? It is not a periodic tenancy that arises. For all we know the rent for not staying there is zero after the contract, or perhaps £10K per month. So what sets the rent after the end of the AST if we take the contractual position.

    As jp says L might in theory be entitled to his losses, but it would be hard for him to argue that those losses are anything other than zero irrespective of the resulting void or anything else.

    Leave a comment:


  • jjlandlord
    replied
    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.

    Leave a comment:


  • jpkeates
    replied
    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.

    Leave a comment:

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