Tenancy not covered by housing act - what notice do we need to give?

Cissi

As an avid reader of this forum I thought we had all our bases covered, but now I'm unsure, after finding out the other day that our tenancy isn't in fact covered by the Housing Act of 1988 as our rent is over £25k/annum (:eek: I know but we're in Greater London...)

This is the situation: we moved in in Sept -05, signed a supposed 12-month AST which was last renewed in Sept -07 and expired Sept 4th 2008. In the last extension document the LL/LA built in a clause stating that either party could give 2 months' notice. We were ok with this as we knew the LL wants us to stay and we didn't want to be tied in for 12 months at a time in case we found the right house to buy - this was the compromise that the LA came up with (we assumed this was mainly in order to get us to sign a new agreement and collect their fee).

However, last year we didn't renew the agreement as there were a lot of outstanding repair items, and we were happy to be on a periodic tenancy.

The big question, I guess is: are we really on a periodic tenancy, as we've assumed, or does this rule not apply in our case because our rent is too high? If so, what does apply instead? Is the last agreement, which expired in Sept -08 somehow still valid, ie do we have to give 2 months' notice even though we didn't sign anything last year?

I'm aware that the notice needs to be timed with the last day of the previous agreement, but am now unsure whether we need to give just one month's notice or two?

Thanks in advance!

silvercar

If no AST was in force, then you can't be on a periodic tenacy as that is a follow-on for an AST.

What you do have is a contract. As the term of the contract has expired but you have carried on paying (and the landlord carried on receiving) rent, there would be reasonable grounds for assuming that all other aspects of the contract have continued. I would therefore expect the terms to be governed by contract law. As only the end date has changed, all other clauses would be valid.

If the contract specified 2 months notice to end at the end of a rent period then that is what you need to follow.

I'm basing this on common sense, you may want to try landlordzone.co.uk/forums. there are some lawyers on there who would know.

N79

Silvercar is correct.

Tenancies outside the housing act are determined by the content of the contract. There is no equivalent of the housing acts which provide statutory terms which will overide contract terms (technically there is some but it will not apply here). So what does the contract say about giving notice? If you signed the change of contract terms that included the 2 months notice then you need to give 2 months notice. The notice should end at the end of a rental period (this is not just a housing act rule) but it may be fun to actually determine your rental period. If in doubt discuss with your LL.

Cissi

Thanks, I thought this might be the case...

I'm still confused though, and I think our LL/LA may be as well, as they keep referring to our agreement as an AST! The exact wording at the bottom of the Tenancy Renewal Agreement is as follows, under "Notices":

"3. The Landlord hereby gives notice to the Tenant:-

That this agreement is intended to create an Assured Shorthold Tenancy as defined in Section 20 of the Housing Act 1988 and the provisions for the recovery of possession by the Landlord in Section 21 thereof apply accordingly and the Tenant upon signing this agreement acknowledges that he has received such Notice.

Either party may terminate this agreement provided that two months written notice is given to either party and such notice is given on the tenancy agreement date."

Incidentally, while signed by both the Tenant and Landlord, this document isn't even dated, although further up the "term" is defined as "one year from and including 05/09/2007 until and including 04/09/2008".

So am I now right that we need to give notice by this Saturday, 4/7 for September 4th, alternatively before August 4th for October 4th?

N79

Cissi

As I think you have realised it does not matter that the contract says it is an AST it is not - it is outside the scope of what the law allows to be an AST. I suspect that your LL and LA are clearly muppets with no understanding of the law and they fail to appreciate the mess you are all in.

You are correct on the dates you quote for September (ie notice on or before 04 July). However, I believe that it would be best to discuss this with your LL, arrange mutual understanding of your notice period and get this confirmed in writing, signed by both parties. If your LL thinks it is an AST then you may be able to get them to treat it like an AST even though it is not.

The contract you have is totally inappropriate for the tenancy and I suspect that this screwup has the potential to adversely affect both you and the LL if you end up in dispute. I have no idea what terms a court would impose on the pair of you with regard to length of your current (non) tenancy - you could end up with an annual rental period!

(By the way it is an out of date AST tenancy agreement anyway as there has been no need to serve the section 20 notice on Ts at the start of an AST since the 1996 revision of the housing act.)

Good luck.

tbs624

There seems to be confusion here. Cissi- -sorry I didn't pick up on your final question in your original thread.

The AST that cannot be an AST expired. You continued to occupy and to pay rent monthly. Not a the usual periodic that continues after an AST (as there cannot be one here) but a common law periodic agreement. They accepted your rent on a per month basis, so therefore IMO you have to give one full month's notice. Tie it in with the rent payment dates so that you leave the day before you would be due to make another rent payment.

tbs624

N79 wrote: »

... I have no idea what terms a court would impose on the pair of you with regard to length of your current (non) tenancy - you could end up with an annual rental period! ..

Am assuming you simply missed "AST" after the word non out here as Cissi does have a tenancy! She pays rent which is accpeted and has occupation of the property. Rental period would only be annual if rent paid annually

N79 wrote: »

.(By the way it is an out of date AST tenancy agreement anyway as there has been no need to serve the section 20 notice on Ts at the start of an AST since the 1996 revision of the housing act.)..

It just gets better doesn't it? And this idiot LA is making a nice fat earner out of a let of more than £25K per annum. No qualification, no expertise, no training required .................................there are some terminally useless LAs out there

tbs624

silvercar wrote: »

If no AST was in force, then you can't be on a periodic tenacy as that is a follow-on for an AST.

What you do have is a contract. As the term of the contract has expired but you have carried on paying (and the landlord carried on receiving) rent, there would be reasonable grounds for assuming that all other aspects of the contract have continued. I would therefore expect the terms to be governed by contract law. As only the end date has changed, all other clauses would be valid.

If the contract specified 2 months notice to end at the end of a rent period then that is what you need to follow.

I disagree on this point : non-AST tenancies do not allow for a stat periodic, precisely because they arise after an *assured* tenancy (incl AST) expires. The periodic tenancy that has arisen here is nothing to do with the incorrectly given AST that predated it. It stands anew: rent paid monthly, notice is monthly.

Cissi

Thank you again tbs624! I actually thought of PMing you for advice after your last explanations made me realise what mess we're in - thanks for taking the trouble to help out again.

Phew, I feel better now and sincerely hope you're right! I did think that surely our period is one month, not a year as the rent is payable monthly - exact wording, under "term and payment details":

"Term: one year from and including 05/09/2007 until and including 04/09/2008

Rent: £XXXX per calendar month clear of all deductions

Payable: In advance by 12 equal monthly payments on the 5th of each calendar month"

We will of course give 2 months' notice if required although we were hoping for just one - but there is no way we can afford one year :eek:

The problem is that it's looking extremely tight for us to be able to exchange contracts on our purchase by Friday so we may not be able to give notice by July 4th like we hoped... Yikes, I do hope that doesn't tie us in for another year :eek:

Cissi

tbs624 wrote: »

I disagree on this point : non-AST tenancies do not allow for a stat periodic, precisely because they arise after an *assured* tenancy (incl AST) expires. The periodic tenancy that has arisen here is nothing to do with the incorrectly given AST that predated it. It stands anew: rent paid monthly, notice is monthly.

Much as I hope that this will turn out to be the case, I thought I'd let you know that I've just spoken with Shelter and they agree with Silvercar on this. They said that the terms of whatever contract we'd last signed would still be in force

Yikes, I think we need legal advice on this. Our conveyancing solicitor has the whole file of our rental and was going to get someone else in the firm to look at this - guess I'd better chase them up!

N79

tbs624 wrote: »

Am assuming you simply missed "AST" after the word non out here as Cissi does have a tenancy! She pays rent which is accpeted and has occupation of the property. Rental period would only be annual if rent paid annually

Good spot - yes I missed out typing AST. If rent is paid and accepted then of course there is a tenancy. Even I know that!

As for the notice period I am willing to accept your argument that monthly rental means monthly notice on the basis that there is no continuation of terms from the original tenancy. However, in my experience (and I have only ever had 1 commercial tenancy dispute from an inherited tenancy), a court would attempt to determine the original intention of the LL and T (even though in this case it is very badly worded) in deciding any dispute over notice periods? In this case, the original badly worded tenancy does appear to suggest that both parties intended to give and receive two months notice.

I still believe that the best route for the OP, before bringing in solicitors to what is likely to end up messy, is to try to negotiate an amicable agreement with their LL to end the tenancy. And get this agreement in writing! Paying an extra months rent, especially if the notice and the completion of their purchase are well timed is likely to be cheaper and easier that determining the correct notice!

OP as a matter of interest did the LL protect your deposit? They were under no legal obligation to do so (as the tenancy is not an AST) but since they seem to have thought it was.....