periodic tenancy notice - the definitive answer?

hgllgh

Once a fixed term agreement (AST) ends, if it is not renewed to another fixed period, it will automatically lapse into a periodic monthly agreement. I have searched the forum and there seems to be a lot of confusion regarding the definitive legal position regarding the notice when on a periodic tenancy.

One school of posts says it is :-

the date of notice + the number of days to the monthly tenancy payment date + 1 month ( therefore forcing the tenant to pay more than one months notice )

the other says it is:-

the date of notice + 1 calendar month.

is there anyone who actually knows ( i.e. not thinks they know, but actually knows ) the legal right of the tenant in this situation?

clutton who seems to know? said the following ...
"the law is very clear - outside of a fixed term - tenants need only give one months notice IRRESPECTIVE of what it says is in the tenancy agreement"

Notlob

You must give no less than one month's notice and it must expire at the end of a rent period i.e. rent period 10th of the month to the 9th of the following month and you give notice on the 11th September, then your notice will expire on the 9th November. This will be the worst case scenario.

Notlob

Bungarm2001

We have had all sorts of scenarios with the periodic tenancy 'rules.'

We had one tenant who finally left after 2 months beyond the 12 month AST owing the last 4 months rent, plus the additional 2 months. We threatened this person with court proceedings, then a relative of this person became involved and negotiated us out of persuing the last 2 months periodic. The attitude was, you have nothing in writing, so *go away * (** replace words with anything more suitable!)

I was all for taking it all the way and testing out whether the peroidic tenancy rule is actually legal or not, and would be counted in as arrears, but my OH and the LA decided that since the relative had already threatened to pay anything awarded against them at £1 a week, we should take the offer of full payment to the end of the 12 month AST plus any deposit due and forget the rest, which is what we did.

We are however going after this particular person's ex flatmate who also left, or rather gave the keys back a couple of month's into a periodic. This person is under the impression that because the keys were giiven back 3 weeks into the second month beyond the end of the AST that only one month is owing, on top of the 4 months owed from the 12 month AST ...if that makes sense!

We are going for the full 6 months owed in this instance; 4 months arrears on the 12 month AST and the full 2 months of the periodic roll over, even tho the keys were returned 6 weeks into the roll over period.

I will post on here anything relevant to your question as time goes by or if anything happens.

I'm rather hoping someone else will post too to give us the benefit of their experience.

Debt_Free_Chick

You have to give ONE MONTH's notice, but that one month must cover the whole of the next rent period. You can give the notice on any day you like, but it must run for the whole of the next period.

The rent period is usually defined in the AST and, unless otherwise stated, it starts on the day that the rent is due. So if the rent is due on the 4th of each month, the rent period starts on the 4th day of every month and ends (at midnight) on the 3rd day of the following month.

So if you give notice on the 1st day of any month, that notice covers the period from the next 4th day of the month to the 3rd of the following month e.g. give notice on 1st October and the notice runs from 4th October to 3rd November.

If you give notice on the 5th day of the month, that notice runs from the 4th of the next month to the 3rd of the following month e.g. give notice on 5th October and the notice period runs from the 4th November to 3rd December.

The date of the notice is generally irrelevant when calculating the period of notice - but it determines the start of the notice period, which must fall on the rent date following the date of the notice itself.

All of the above assumes rent is paid monthly.

HTH

Debt_Free_Chick

Bungarm2001 wrote: »

We are however going after this particular person's ex flatmate who also left, or rather gave the keys back a couple of month's into a periodic. This person is under the impression that because the keys were giiven back 3 weeks into the second month beyond the end of the AST that only one month is owing, on top of the 4 months owed from the 12 month AST ...if that makes sense!

Some dates would help us to post a reply, which would be easier to understand/illustrate.

Bungarm2001

Rent on the AST was due 28th of every month, payable in advance.
AST started 28th June and ended 27th June.

Tenant stopped paying rent after paying in January, gave keys back 15th August. Therefore, we are owed (as far as I can see it) March, April, May and June rents, plus July and August, even tho the tenant gave the keys back on the 15th.

Any thoughts anyone?

tbs624

hgllgh wrote: »

Once a fixed term agreement (AST) ends, if it is not renewed to another fixed period, it will automatically lapse into a periodic monthly agreement. I have searched the forum and there seems to be a lot of confusion regarding the definitive legal position regarding the notice when on a periodic tenancy.

One school of posts says it is :-

the date of notice + the number of days to the monthly tenancy payment date + 1 month ( therefore forcing the tenant to pay more than one months notice )

I don't see how this "forces" a tenant to do anything: if the terms of the preceding AST state that rent is paid monthly, then that means that the rent period runs from month to month - and it is clear that the notice period from a tenant to a LL has, as DFC says, to cover the whole month from one rent due date to the next.

If you decide to date your notice at any point other than a rent due date then you have *chosen* to give more notice: after all you will have probably had at least 6 months to get used to the idea of when the rent period runs from and until.

It does of course work both ways - a LL also has to give notice in the same fashion.

The only exception to this is where a LL & T agree otherwise between themselves but it cannot be a unilateral decision in which either party seeks to deprive the other of their legal rights..

Premier_2

Under a statutory periodic tenancy, the tenancy is on a periodic basis, hence the term.

Notice must be given that ends at the end of a rental period, normally the day before or the day the rent is due. A tenant must give one months notice and a landlord two months, such notice ending at the end of the rental period after the period in which it is given.

So unless the notice is given on the last day of a tenancy period, it will be longer than one month for a tenant or 2 months for a LL.

Premier_2

Bungarm2001 wrote: »

Rent on the AST was due 28th of every month, payable in advance.
AST started 28th June and ended 27th June.

Tenant stopped paying rent after paying in January, gave keys back 15th August. Therefore, we are owed (as far as I can see it) March, April, May and June rents, plus July and August, even tho the tenant gave the keys back on the 15th.

Any thoughts anyone?

Assuming no notice was given, the surrender of the keys would probably be considered as the date notice was given.

So you would be entitled to rent due on the 28th of the following months:
February, March, April, May, June, July, August.

However, if you were able to re-let the property before 27th September, the former tenant should be credited the appropriate amount - you are not allowed double rent on a property.

Whether you suceed in getting the back rent back would be another question, but you might just be happy knowing the former tenant has an unsettled CCJ against them.

hgllgh

Debt_Free_Chick wrote: »

You have to give ONE MONTH's notice, but that one month must cover the whole of the next rent period. You can give the notice on any day you like, but it must run for the whole of the next period.

The rent period is usually defined in the AST and, unless otherwise stated, it starts on the day that the rent is due. So if the rent is due on the 4th of each month, the rent period starts on the 4th day of every month and ends (at midnight) on the 3rd day of the following month.

So if you give notice on the 1st day of any month, that notice covers the period from the next 4th day of the month to the 3rd of the following month e.g. give notice on 1st October and the notice runs from 4th October to 3rd November.

If you give notice on the 5th day of the month, that notice runs from the 4th of the next month to the 3rd of the following month e.g. give notice on 5th October and the notice period runs from the 4th November to 3rd December.

The date of the notice is generally irrelevant when calculating the period of notice - but it determines the start of the notice period, which must fall on the rent date following the date of the notice itself.

All of the above assumes rent is paid monthly.

HTH

DFC ... can ask how you know that this is legally the case?

There is nothing in my AST (which has now expired) about the 1 months notice having to begin on the first day of the next monthly period? If it's not in the contract, it's not legally binding?

Debt_Free_Chick

hgllgh wrote: »

DFC ... can ask how you know that this is legally the case?

There is nothing in my AST (which has now expired) about the 1 months notice having to begin on the first day of the next monthly period? If it's not in the contract, it's not legally binding?

There's no need for anything to be in the agreement. Once the agreement expires then the terms of the agreement cease to exist EXCEPT that the Housing Act provides for certain terms to continue.

You won't find "the law" setting out the position exactly as I've explained it, but it follows on from interpretation of the various Housing Acts as below

From section 5 of the Housing Act 1988 (I've paraphrased it so you can see the relevant parts)

(1) ...
(2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—
(a) an order of the court, or
(b) a surrender or other action on the part of the tenant, then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section.
(3) The periodic tenancy referred to in subsection (2) above is one—
(a) taking effect in possession immediately on the coming to an end of the fixed term tenancy;
(b) deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the person who was then the tenant under that tenancy;
(c) under which the premises which are let are the same dwelling-house as was let under the fixed term tenancy;
(d) under which the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy; and
(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.

What this means is that, under a statutory periodic tenancy, you are entitled to remain in possession of the property for the same period as applied under the AST. This is usually the period covered by the rent - if not, the AST would have stated - clearly - the date on which the rent was due and, separately, the period that the payment of the rent would cover. For example, it might state that the rent is due on the 1st of the month to cover the period from the 5th of that month to the 4th of the following month. This would be highly unusual though and gives rise to all sorts of problems so it's unlikely that the "period" is anything other than that which begins on the day that the rent is due is and ends on the preceding day of the following month.

We then come to the notice that the tenant has to serve. To be honest, I'm not entirely sure that the tenant has to give any notice at all!!!!

My understanding is that the AST gives the tenant the right to occupy the property for the fixed term stated in the AST. In theory, the tenant must then leave at the end of the fixed term.

However, the Housing Act (as above) gives the tenant to right to continue to occupy the property under a statutory periodic tenancy. The effect of this is that the term for occupancy by the tenant is extended, by one rent period, when the rent is paid after the expiry of the fixed term.

So ... if the fixed term ended on 5 September, but the (monthly) rent was paid on 6 September, then the tenant's right to occupy the property is effectively extended to 5 October. The rent is then paid on 6 October, and the term is extended to 5 November ... and so on.

I am not convinced that there is a statutory requirement for the tenant give notice to end the statutory periodic tenancy. However, I think it might be in the tenant's interest to give notice that he/she intends to end the whole contractual agreement i.e. the original AST as extended (beyond the fixed term) by the Housing Act. Without notice of intention to end the contract then, in common law, arguably the contractual obligations still exist.

I really don't know and I think it's one for a solicitor.

I now believe that a tenant has no statutory obligation to give any notice at all; that the tenant has the right to occupy the property for the fixed period covered by the AST; that following expiry of the AST and in the absence of anything else to the contrary, that the tenant then continues to have the right of occupation for the next period, under the provisions of the Housing Act; and that the tenant may vacate the property at the end of any "period", without the need to give notice.

BUT ... there might be obligations to honour the contract, if the contract is not terminated and it's usually best to terminate a contract in writing.

Clear as mud, eh?

Good question - I'd be interested in the definitive answer too.

As I get older, I really relish having my beliefs/understanding challenged .... if nothing else, it makes me damned sure that what I believe is "right" and lawful :beer:

Anyone else care to chip in? This is a really good question but I think we'll need a solicitor's view to be sure