Email as sufficient notice to leave tenancy?

G_M

Fett132 wrote: »

Progression:

....

Im going to start another thread on the update of the situation as I cant seem to find any answers via Google but I very much appreciate everyones thoughts and discussion here.

:beer:

PLEASE don't.

When you come back to provide an update (which is always welcome), continue to use THIS thread. That way both new readers, AND the rest of us, can see the whole story in one place. It saves YOU from repeating the history, and it saves US from looking back at old threads...

Fett132

It is a very grey area and could go either way

I went to an established Estate Agents today to put a deposit down on our new flat. I told them the situation and this is what they said they would do:

• If the tenancy has rolled over to a periodic tenancy then we do not have to end it on the date at the end of the rent period, we can end it on any date as long as it is one month or longer notice (this didnt seem right to me, but they seemed pretty sure. Im still going with it has to end on a rent date)
  
• Give another notice to end on the 15th (our rent date is 28th)
  
• Get an independent inventory done, post the keys back and let the DPS decide whether our notice is valid and how much we should give from our deposit for repairs

Supposedly the worst that could happen here is that they could take the remaining rent from our DPS protected deposit to cover the missed rent and use the rest for damages. Apparently they could not chase us for any more money than that (assuming there is no criminal damage and the deposit covers the rent arrears) as this is what the deposit is for. It is the amount the Landlord or Agent set out as insurance and the risk they have taken by asking for one and a half months rent as deposit. He said they can ask for more but whatever they decide is like their insurance on the property so thats the worst that could happen. DPS could rule that our notice isnt valid and give her the money.

Im not going to go through with this idea, seems a bit risky, just thought you guys would be interested to know about it though.

Werdnal

I doubt the DPS will be remotely interested in whether your notice was valid or not!

As for the EA, established or not, nothing surprises me in the amount of total tosh they spout! There is a saying "All the gear and no idea" - ie flash office, designer suit, new car and gift of the gab, doesn't qualify them to know anything at all about tenancy regs or housing law!

Remember the EA doesn't work for you, they work for the LL, so never ask an EA or LA for advice as a tenant - they will do you no favours whatsoever!!!!!

MonkeySaving?

Yes, it was on time and requested by them

E-mails are legally standing in ALL cases, if you can prove that what was sent was received. A simple, "Please confirm by return e-mail stating that you have received this message" and making sure you retain the response will suffice.

Fett132

It is a very grey area and could go either way

Well it looks like Im just going to give them another notice for a month and a half from now, seeing as they have decided to not know how to open email attachments.

In our contract it does say that if the contract expires, the tenancy continues as an implied tenancy. Is this different from a statuatory periodic tenancy? Are they allowed to include this in the contract?

It also says that if we wish to leave at any time during or after the contract we must give two months notice. This cant be enforced can it? Is it against the law because the law states one month minimum, or is that just a guide line and they can in fact demand two months rent?

G_M

Fett132 wrote: »

...
In our contract it does say that if the contract expires, the tenancy continues as an implied tenancy ?? 'implied is a poor word here. they mean as opposed to contractual/written - ie it happens automatically without either side doing anything ! . Is this different from a statuatory periodic tenancy? Are they allowed to include this in the contract?see below!

It also sayshmm - so NOT 'implied'. It IS written! that if we wish to leave at any time during cannot be enforced or after the contractdebateable we must give two months notice. This cant be enforced can it? Is it against the law because the law states one month minimum, or is that just a guide line and they can in fact demand two months rent?

1) when the initial Fixed Term ends, the tenant can move out without giving any notice, whatever the contract/tenancy agreement says

2) If the tenant stays, a SPT arises immediately (Statutory Periodic Tenancy) which runs from month to month. The tenant must give one 'period' notice (ie a full month ending with the rental period.

3) The original contract, however, may (as seems to be the case here) include provision for a CPT (Contractual Periodic Tenancy) to arise when the fixed term ends. This is similar to a SPT in that it runs period to period (monyh to month) but is not started by Statute automatically whn the tenant remains after the fixed term. It is started as a result of the contract the tenant/LL originally signed. As such, it may have different terms ie as here, the 2 months notice requirement.

HOWEVER, such a contractual clause may fall foul of the Unfair Terms in Consumer Contracts Regulations. Tessa Shepperd (property solicitor) appears to believe so:

"Re your second comments, you can provide for a contractual periodic tenancy after the end of the fixed term but you need to watch out for the unfair terms in consumer contracts regs if setting up longer notice periods, and it may not be possible to do that : http://www.landlordlawblog.co.uk/2010/05/15/tenancy-agreements-31-days-of-tips-day-15-unfair-terms-1/
"

Normally, a CPT is used as an alternative to a fixed term, not as something to follow it. ie the LL/tenant agree at the start that there should be NO fixed term (or perhaps a fixed term of one month) and the tenancy will be CPT from the start.

This is fine and legal. But by writing into the contract for a 6 month Fixed Term tenancy a clause setting up a CPT thereafter, the LL is taking away a right that the tenant would otherwise have to a SPT. Hence the Unfair Terms above.

But I do not believe any of this has been tested in the courts.

tbs624

G_M wrote: »

This is fine and legal. But by writing into the contract for a 6 month Fixed Term tenancy a clause setting up a CPT thereafter, the LL is taking away a right that the tenant would otherwise have to a SPT. Hence the Unfair Terms above.
.

My bolding

Check out the HA88, s5(4)

(4)The periodic tenancy referred to in subsection (2) above shall not arise if, on the coming to an end of the fixed term tenancy, the tenant is entitled, by virtue of the grant of another tenancy, to possession of the same or substantially the same dwelling-house as was let to him under the fixed term tenancy.

A CPT is "another tenancy" . Not sure how it can be "unfair" to prevent "the right" to an SPT arising ?

Fett132

It is a very grey area and could go either way

UPDATE:

After all of that email fiasco, we decided to just take the hit and pay the extra months rent.

We sent it at the post office, recorded delivery on the 15th July. Brilliantly, the post office lost it and I only found out today that it hadnt been delivered.

Ive paid for next day delivery (£10.05!!!!) so the letter should arrive tomorrow on 28th telling the Letting Agent we will move out on 28th August.

Im hoping this will all be fine, our periodic agreement runs from 28th-27th so Im guessing this should be OK if it should go to court. As you can guess by the previous posts, the letting agent is absolutely ridiculous and will do anything to get more of our money so it still puts me on edge a lot. Im just also worried that it will arrive on the Saturday, ugh Im absolutely sick of all of this altogether!

What do you guys think?

ruggedtoast

You should be able to give notice on a rent day so will probably be alright.

Recorded delivery is about the worst way to send a letter as it is neither guaranteed to be delivered, or recorded if it is. Letters are sent by normal post and the post man might get a signature if he can be bothered, otherwise it'll just go through the letterbox with the rest of the mail.

Probably your letter did arrive they just didn't bother to track it. You should check with the LA.

For legal documents you should send them with proof of posting from two different post offices. There is no need to send by Special Delivery, especially as this exposes you to the risk that the recipient can refuse to sign.

Fett132

It is a very grey area and could go either way

Thanks, good advice. I will avoid recorded delivery from now on.

When I called the PO I asked if a delivery had been attempted and they said that they would have note of it if it had and apologised as it was probably lost. I freaked out and ran down to get next day delivery on a new letter so I have two proof of postings now which are from different PO's

My flatmate offered to cycle down to the Letting Agent's office (which is actually just a house) but I told them there was no point delivering it by hand as they would need a witness with them.

If you want something done right....