deposit problem (Scotland)

sharewatcher

Hi wonder if the board can help again

My son rented a flat on a six month lease, he moved out at the end of the lease, the letting agency have decided that as he did not give 2 months notice he is liable for rent for the next two months, he gave the letting agency no indication that he would extend the original lease, is this lawful?

hearts

Depends on the wording of the Lease. I do 6 month leases they continue after the 6 months. The Tenancy can be cancelled by either party with 1 months notice after the 6 months. Read the Lease and see what it says.

Look at it from there point of view. If your son just suddenly says I'm leaving, without notice. They have no time to find a new tenant.

sharewatcher

Have been checking around on the net and it seems that as it was a fixed term agreement no notice is required according to the OFT website.

It seems to me the leasing agency are to blame, they had a remedy, as my son gave no indication that he wanted to extend the lease the agency should have sent him a notice to quit after 4 months so the landlord would not have any voids.

This thought is vindicated by the [SIZE=+1]The Unfair Terms in Consumer Contracts Regulations 1999 [/SIZE]the OFT guidance is that requiring a tenant to give notice to end a fixed term contract is illegal.
Opinions?

sharewatcher

Notice not required for fixed term agreements
3.78
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. This could allow the
landlord to impose a substantial financial penalty on tenants who do not
realise that notice is not required, by requiring them to pay rent for a period
after the end of the fixed term. Terms such as this are not necessary to
protect landlords from the possibility that their property will be left empty, as
the law allows landlords to recover possession at the end of the fixed term
by serving at least two months' notice, and they could do so where their
current tenant fails to indicate when asked whether they intend to stay on.
The landlord and tenant could of course still agree to a renewal of the
tenancy even after such notice was served.

hearts

Looks like your right ;-)

tbs624

Deleted my first response as had missed the important "Scotland" part of the OP's post

The rules on notice in Scotland differ from that in Eng/Wales because of the doctrine of "tacit renewal". In Scotland, if TR applies to your contract you have to give appropriate notice or you will find yourself on another contract running for the same period as your initial Fixed Term, unless the original tenancy agreement says that the doctrine will not apply. If that is the case, you then have the option of signing up for a new contract with different terms, agreeing for the tenancy to continue as a statutory periodic (1 month's notice from the T, 2 from the LL) or to move out.

You may find it helpful to read this thread - http://forums.moneysavingexpert.com/showthread.html?p=17812585#post17812585

It's also worth remembering that the issue of unfair contract terms can only be upheld or discounted by a court, so your son should check the wording of the tenancy agreement and talk to the local council's private sector rentals team/landlord registration team or ring Shelter Scotland for advice. (All LAs and LLs in Scotland have to be registered with the local council, and that registration is renewable every 3 years)

sharewatcher

Thanks for the help so far,
A bit more info from me might help,
this was a joint tenancy lease (son and girlfriend) however the girlfriend never signed the lease (although both their names are on it) does this void the lease?

Tacit relocation does not apply as the lease mentions month to month,

The terms of notice are unclear, it says (copied faithfully)
(if the tenancy is not terminated on 10th January either two months written notice given by the Landlord to the Tenant stating that the Landlord requires possession of the premises or by two months written notice given by the Tenant to the Landlord of his intention to quit the premises on the date last mentioned it will continue from month to month)

I think I know what it is meant to say but it can be read two ways.
As a matter of courtesy my son did give the landlord 1 months written notice of his intention to quit he also mentioned he was going to quit 3 months before the lease ended (oral)
To my mind this is just a bad agent