AST to Periodic Tenancy

j_yorks

I'd be really grateful for some advice on my contract.

We currently rent and have an assured shorthold tenancy agreement which commenced on 15 September 2014 and runs to 14 March 2016 (a term of 18 months).

The tenancy agreement states:
"To give the Landlord or his Agent at least two calendar months notice in writing to terminate the tenancy, such notice not to expire earlier than the end of the fixed term of the tenancy. The Tenant must ensure that any notice to terminate this agreement is actually received by the Landlord or Agent and that written acknowledgement is obtained. Merely posting the notice will not be sufficient."

We want to move to a rolling tenancy agreement after our term finishes, as we are buying a house. Ideally we would give 1 month's notice of when we will move out.

According to everything I have read online, once the AST lapses, we switch to a periodic tenancy and then we legally seem only to be required to give 1 month's notice.

My question is whether this tenancy agreement can continue to oblige us to give 2 months' notice even after it lapses? Or is it always 1 month regardless of what the tenancy agreement required when we were within its term?

thanks.

franklee

If you go onto a statutory periodic tenancy then it's one rental period's notice.

If you go onto a contractual periodic tenancy then it's what the tenancy agreement says.

So which do you have? You need to look at the wording where the tenancy is defined. e.g. Does it say it's a tenancy for 18 months or does it say it's a tenancy for 18 months and thereafter month to month or something like that. Suggest you post the wording of that bit and hopefully it will show if the agreement causes a contractual periodic tenancy to arise. If not then in the absence of anything else you'd automatically get a statutory periodic tenancy.

j_yorks

It doesn't say anything specifically about what happens after the AST finishes apart from that in the definitions at the beginning it states that:

""Term" or "Tenancy" includes any extension or continuation of the contractual Tenancy or any statutory periodic Tenancy arising after the expiry of the original Term."

It then says the Term of the agreement is 18 months, from X date to Y date, with £Z per calendar month payable in advance on the 15th of the month etc etc.

Then, the bit I already posted above:

"To give the Landlord or his Agent at least two calendar months notice in writing to terminate the tenancy, such notice not to expire earlier than the end of the fixed term of the tenancy. The Tenant must ensure that any notice to terminate this agreement is actually received by the Landlord or Agent and that written acknowledgement is obtained. Merely posting the notice will not be sufficient."

Essentially it seems that because it says here I need to give 2 months written notice to terminate the tenancy, and they've pre-defined tenancy to include any periodic statutory tenancy, they might then argue that even during the periodic statutory tenancy, 2 months notice is still required. Is this possible? Can they vary the terms of an automatic periodic statutory tenancy like that?

theartfullodger

I think it become statutory periodic for which the tenant needs to give AT LEAST 1 month's notice (assuming rent payable monthly) expiring on last day of a monthly period.

Let's think this through: You go on to periodic (both you & LL believe it is periodic, albeit maybe slightly different terms). You find somewhere to buy & give valid (in your terms) notice, then leave: What does LL do? He can sue you for the rent he thinks is due - but likely will lose.... Alternatively you can, instead of giving notice, offer a surrender of tenancy (eg 2 weeks time plus £300 - or whatever) which he might agree to.

Until & unless this gets to court you & LL won't know what the deal is...

j_yorks

She's an elderly lady in her 70s, and very sweet, so I highly doubt she would sue us. I just want to know what is legally required of us toward her.

She might agree to surrender of tenancy but wouldn't be under any obligation to do so so I'm not sure what she would say to that.

franklee

j_yorks wrote: »

It then says the Term of the agreement is 18 months, from X date to Y date, with £Z per calendar month payable in advance on the 15th of the month etc etc.

That's the key bit, so long as there's nothing about the tenancy continuing then after the end of the fixed term you would get a statutory periodic tenancy. In that case you need to give a whole periods notice, not a calandar month. So that pans out to between one and two months depending on how the dates fall.

If it really is a statutory periodic tenancy then the clauses in the tenancy agreement about giving notice no longer apply. See quoted bit of housing act below.

http://www.legislation.gov.uk/ukpga/1988/50/section/5
Housing Act 1988

5 Security of tenure.

....

(3)The periodic tenancy referred to in subsection (2) above is one—

....

(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.

j_yorks

Yes, I'd read the part about the notice periods etc before. So it could indeed be closer to 2 months.

Thank you very much for the clarification.

Strangely perhaps, the Housing Act doesn't actually seem to state the 1 month statutory notice period for tenants and 2 months for landlords - where does this then actually come from?

theartfullodger

It's not Housing Act: It's Protection from eviction Act 1977 S3
http://www.legislation.gov.uk/ukpga/1977/43/section/5

as regards tenant's notice which says it must be at least 4 weeks & then I understand common law that means it must end at end of a rental period (so monthly rent => at least 1 month's notice) and if we are being pedantic Crate v Miller 1947 which states tenant's notice may expire last or 1st day of a period (not the same as when tenant must leave btw...)

franklee

Yes tenant's notice is common law.

j_yorks

You've amended your post and the link, but, actually, I have read it, and I still can't see where it states the notice period the tenant is required to give the landlord during a periodic tenancy (and vice versa).

Your updated link is about proceedings for possession.

The original link was perhaps more appropriate as it states:

"The periodic tenancy referred to in subsection (2) above is one—
(d)under which the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy; "

Anyway, I've answered my own question I think - apparently these details are really not contained in the Housing Act at all, but in case law (Laine and Mitchell v Cadwallader & Cadwallader (2001)). The ruling was that a tenant's notice had tobe "equal to at least a period of the tenancy and expiring at the end of the period of the tenancy”.

j_yorks

Sorry, the person who originally posted to tell me that I could neither read nor use Google has deleted his post! So now it looks like I'm talking to myself....

Thanks for the above posts which confirm what I had found online.