Can T revoke Notice to Quit (AST) and stay-on?

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    Can T revoke Notice to Quit (AST) and stay-on?

    QUESTION:
    1. Fixed term tenancy (under 1988 Act).
    2. T serves Notice to Quit during it. This NTQ cannot operate until term ends, of course.
    3. T then changes mind and wants to stay-on. What happens at fixed term end?

    ANSWER (I think)
    1. See s.5(2). It provides that, when a fixed-term AST ends "otherwise than by...an Order of the Court or...a surrender or other action on the part of the tenant,...then...the tenant shall be entitled to remain in possession...upon a periodic tenancy..."
    2. Note the words "other action on the part of the tenant". NTQ is "other action", so I believe that such T will NOT have any right to a statutory periodic tenancy after the fixed term expires.
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

    #2
    I guess the answer hinges on whether NTQ is an action that actually ends the AST. It could be argued that it isn't, because AST remains in place even after NTQ is given --- so NTQ doesn't end AST.

    But I think your answer does sound correct.

    Peter

    Comment


      #3
      Originally posted by pcwilkins View Post
      I guess the answer hinges on whether NTQ is an action that actually ends the AST. It could be argued that it isn't, because AST remains in place even after NTQ is given --- so NTQ doesn't end AST.

      But I think your answer does sound correct.

      Peter
      A. Surely, NTQ does end tenancy when fixed term expires (no matter on what date NTQ is served).
      B. Section 5 does not demand that, for section 6 periodic tenancy to be excluded, the fixed term itself be ended by NTQ.
      C. Finally, the section obviously contemplates surrender being capable of ending the letting- s.5(2)(b) would otherwise not need to mention surrender- so NTQ ought to have same effect.
      JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
      1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
      2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
      3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
      4. *- Contact info: click on my name (blue-highlight link).

      Comment


        #4
        Originally posted by jeffrey View Post
        A. Surely, NTQ does end tenancy when fixed term expires (no matter on what date NTQ is served).
        I would tend to agree, but I can imagine someone arguing that NTQ simply gives notice that T wants to end tenancy at some point in the future --- so NTQ doesn't actually end tenancy. Personally I think such an argument is without much merit but who knows.

        I'm sure any fair-minded person would accept NTQ as effectively ending AST --- it's kind of like ending it in advance, I guess.

        Peter

        Comment


          #5
          ok Jeffrey assuming you are correct how do you get rid of them? Change the locks or treat them as squatters and use relevant legal methods.

          Would this not also apply if tenant gives notice during periodic tenancy?

          Comment


            #6
            Once a tenancy ends, and ex-tenant remains in situ, he is trespassing. Owner must not demand or accept rent, as that creates new tenancy. Possession proceedings would presumably be common-law anti-trespasser procedure.
            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
            4. *- Contact info: click on my name (blue-highlight link).

            Comment


              #7
              I heard the term "mesne profits" used, where the ex-tenant who gave notice still coughs up money. This does help with the cashflow but does not create a new tenancy as long as it's the same amount as when the tenancy existed.

              Comment


                #8
                Originally posted by Surrey View Post
                I heard the term "mesne profits" used, where the ex-tenant who gave notice still coughs up money. This does help with the cashflow but does not create a new tenancy as long as it's the same amount as when the tenancy existed.
                Even if so, accepting it might sometimes lumber L with it being deemed rent. Mesne [=interim] profits are a common-law entitlement of L against an ex-T who holds-over unlawfully. They are in theory a measure of damages covering the period of occupation, so payments on a regular (e.g. monthly) cycle are clearly undesirable because they have the appearance of rent.
                JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                4. *- Contact info: click on my name (blue-highlight link).

                Comment


                  #9
                  In the original case, in the avoidance of doubt I would issue my own notice to quit.

                  The question then arises, once the original term has ended, the tenant's still there despite the tenant's NTQ and the landlord's S21 NTQ, what is the status of the occupancy? Is it still a tenancy, or are they trespassing?

                  Comment


                    #10
                    Originally posted by Surrey View Post
                    In the original case, in the avoidance of doubt I would issue my own notice to quit.

                    The question then arises, once the original term has ended, the tenant's still there despite the tenant's NTQ and the landlord's S21 NTQ, what is the status of the occupancy? Is it still a tenancy, or are they trespassing?
                    Depends!
                    If T's valid NTQ is served during term and at least a month before term expiry, before L serves, it ends the tenancy on term expiry- so T is no longer a tenant and must therefore be a trespasser.
                    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                    4. *- Contact info: click on my name (blue-highlight link).

                    Comment


                      #11
                      So if a tenant fails to comply with their own NTQ they become a trespasser subject to proceedings to recover possession from trespassers,

                      But if a tenant fails to comply with a Landlords section 21 notice, they are still tenants who require a different form of order for possession (N5 - bailiffs etc)?

                      This leads me to two direct questions
                      1. What is the difference in procedures ? (is it that with trespassers - like squatters - if you get in while they're out and without forcing an entry and change the locks that's it).
                      2. What happens if tenant's verbal notice to quit is followed up by landlord issuing a section 21 to hopefully avoid ambiguity/effectively confirm the NTQ. - which notice takes precedence ?

                      and one further related question linked to this
                      3. If 3 out of 4 Tenants give NTQ at the end of a joint AST, does that make the 4th tenant a trespasser or a tenant if he stays on beyond the end of the term ?

                      Any answers gratefully received.

                      Comment


                        #12
                        This thread is following my thread "Enforcing Tenant's NTQ" and I still don't have a definitive answer either! It's definitely one for Pain Smith or Dutton Gregory - I'll try and get an answer in a day or two (or more!)
                        The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

                        Comment


                          #13
                          From the other thread I reiterate - I had a tenant who gave me a written notice revoking their AST and saying they would move out on a specific date. When they then changed their mind it was not worth the paper it was written on. HOWEVER they had not reached the end of the AST. Presumably if they were at the end of a 6 month AST there may have been a different outcome. However a written notice to quit is revocable by a tenant.
                          Unshackled by the chains of idle vanity, A modest manatee, that's me

                          Comment


                            #14
                            Thanks island girl - the idea of tenant's NTQ being very revocable is useful to know.

                            However, what about a joint tenancy where three out of four tenants have given NTQ and have not and do not revoke it.

                            In that case what is the status of the fourth tenant if he stays on past the other tenants' NTQ of their shared agreement.

                            Is he tenant or trespasser ?

                            Comment


                              #15
                              Originally posted by MDM View Post
                              Thanks island girl - the idea of tenant's NTQ being very revocable is useful to know.

                              However, what about a joint tenancy where three out of four tenants have given NTQ and have not and do not revoke it.

                              In that case what is the status of the fourth tenant if he stays on past the other tenants' NTQ of their shared agreement.

                              Is he tenant or trespasser ?
                              If the NTQ operates at end of fixed term or thereafter, anyone remaining in possession is a trespasser unless L accepts him/her as T.
                              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                              4. *- Contact info: click on my name (blue-highlight link).

                              Comment

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