Periodic tenancy - tenancy agreement wording around calendar month for tenant notice period

militantconsumer

Hi everyone

I have read the post in the sticky thread which explains that a tenant in a periodic tenancy (which started automatically after an initial fixed term ended) needs to serve notice up to the end of their normal rent period. So for example if rent is paid on the 1st of the month and they serve notice today (22nd Feb) they would have to pay the whole of March as well up to 31st March. In practice this means that a tenant paying rent monthly has a notice period of between 1 to 2 months long, depending when it is served.
See: https://forums.moneysavingexpert.com/discussion/comment/67759913#Comment_67759913
I'm not arguing about what is in the Housing Act, what is in common law and so on, although I know there are a few contrary opinions on this.

That being said, we know that the parties can agree to any other notice period if they choose. In this example the tenancy agreement states:

The Tenant may terminate this Agreement by giving to the Landlord or the Landlord's Agent one calendar month's notice in writing (not necessarily to the end of a calendar month) effective not sooner than the end of the Term of this tenancy.....

Does this mean the tenant can in fact give one month's notice at any time? Or does the phrase "calendar month" have a specific meaning in relation to dates of the contract rather than its usual meaning in everyday language, which would be for example 22nd Feb to 22nd March? If the landlord won't agree to a "calendar month" of notice now and wants the tenant to pay up to the end of the calendar month, i.e. to 31st March (which is what the agent is advising them), how might this play out? I'm assuming the tenant will pay only pro-rated rent for March and the landlord would then have to try to take the rent shortfall out of the deposit, which would need to go through the Deposit scheme, or perhaps to court if one of the parties doesn't agree to use the scheme. Does anyone have a view on how the Deposit scheme and/or the court might view the situation given that there is the above wording in the contract? I'm interested to hear people's views on the strength of the tenant's case.

You could say the tenant has nothing to lose by trying, although there are financial consequences in the meantime which arise out of the potential "double rent" situation (without going into the full details) so it would be helpful for them to have a bit more certainty now.

Thanks all.
MC

princeofpounds

militantconsumer said:

I have read the post in the sticky thread which explains that a tenant in a periodic tenancy (which started automatically after an initial fixed term ended) needs to serve notice up to the end of their normal rent period. So for example if rent is paid on the 1st of the month and they serve notice today (22nd Feb) they would have to pay the whole of March as well up to 31st March. In practice this means that a tenant paying rent monthly has a notice period of between 1 to 2 months long, depending when it is served.

Not quite (although I suspect it's just a slip of language). When the rent is paid does not matter. What matters are the rental periods. So if the rental periods start on the 1st of the month, and notice was given today, then yes, it should be for the last day in Feb.

Rent can be paid before or after the corresponding occupation, as per the contract. 

militantconsumer said:

The Tenant may terminate this Agreement by giving to the Landlord or the Landlord's Agent one calendar month's notice in writing (not necessarily to the end of a calendar month) effective not sooner than the end of the Term of this tenancy.....

Does this mean the tenant can in fact give one month's notice at any time? Or does the phrase "calendar month" have a specific meaning in relation to dates of the contract rather than its usual meaning in everyday language, which would be for example 22nd Feb to 22nd March? If the landlord won't agree to a "calendar month" of notice now and wants the tenant to pay up to the end of the calendar month, i.e. to 31st March (which is what the agent is advising them), how might this play out? I'm assuming the tenant will pay only pro-rated rent for March and the landlord would then have to try to take the rent shortfall out of the deposit, which would need to go through the Deposit scheme, or perhaps to court if one of the parties doesn't agree to use the scheme. Does anyone have a view on how the Deposit scheme and/or the court might view the situation given that there is the above wording in the contract? I'm interested to hear people's views on the strength of the tenant's case.

Firstly - that term presumably applies to a fixed term tenancy that has since expired so the agreement has become periodic. You'll have to check whether it applies to the periodic agreement, which is legally a separate tenancy. It would do, if a statutory periodic tenancy, but it's theoretically possible (if unlikely) that there is an agreement for a contractual periodic tenancy with different terms.

But I think the main root of the misunderstanding here is more to do with the apportionment of rent. You can give notice at any time, but the reason people say it should coincide with a rental period is that if you stay one day into a new rental period you are liable for the full rental period (for monthly tenancies paid in advance at least - there are some quirks with other forms of tenancy). You don't have a right to pro-rata rent payments for the month, even if your notice is valid in accordance with that clause. It's not that you can't surrender the tenancy.

militantconsumer

Very interesting and useful comments, thank you.

Not quite (although I suspect it's just a slip of language). When the rent is paid does not matter. What matters are the rental periods. So if the rental periods start on the 1st of the month, and notice was given today, then yes, it should be for the last day in Feb.

Rent can be paid before or after the corresponding occupation, as per the contract. 

(NB minor typo? I assume you mean "last day in Mar").
Looking back, the initial 12 month term ran from 7th of a month to 6th of a month one year later. The first rent payment was pro-rated to a lower amount (I assume at the request of the agent) so that rent payments were subsequently made on 1st of each month for the contractual monthly rental amount. This implies that the 12th full payment was effectively split between paying pay off the final week of the initial 12 month term, and partly to make the first (part) payment of a new periodic tenancy. In other words, there doesn't seem to be any evidence that the "rental periods" have been changed to match the payment periods.

militantconsumer

Firstly - that term presumably applies to a fixed term tenancy that has since expired so the agreement has become periodic. You'll have to check whether it applies to the periodic agreement, which is legally a separate tenancy. It would do, if a statutory periodic tenancy, but it's theoretically possible (if unlikely) that there is an agreement for a contractual periodic tenancy with different terms.

Yes I didn't include it, but another term states that "the tenancy will continue after the end of the Term becoming a periodic tenancy on the same terms and conditions" - so I don't think there's any issue there.

greatcrested

Does the tenancy agreement say anything else regarding what happens after the end of the fixed term?

Even if not, that clause on its own implies the creation of a Contractual Periodic Tenancy, not a Statutory Periodic Tenancy, and in a CPT the notice required is whatever the contract specifies.

In this case it specifies a calender month. The "not necessarily to the end of a calendar month" is superfluous and adds nothing).

Common law specifes that a tenancy period (note: NOT a rent period which may be different) is indivisible, so once a new period commences, rent is due till it ends.

However Contract Law over-rules Common Law, so in this case a calended month = a calender month.

(whilst on this subject, your reference the the Housing Act is irrelevant as the Act says nothing about notice by tenants - an oversight?)

If the tenancy periods run 1st to last day of each month, and notice is properly served on 22nd Feb, the tenancy will end on 21st Feb March(one calender month later).

editted: oops!

militantconsumer

But I think the main root of the misunderstanding here is more to do with the apportionment of rent. You can give notice at any time, but the reason people say it should coincide with a rental period is that if you stay one day into a new rental period you are liable for the full rental period (for monthly tenancies paid in advance at least - there are some quirks with other forms of tenancy). You don't have a right to pro-rata rent payments for the month, even if your notice is valid in accordance with that clause. It's not that you can't surrender the tenancy.

I'm a bit confused about what constitutes the "rental period" given what I mentioned above about the payments being for calendar months while the contract began on the 7th of a month. But even if we could prove that it's the 7th to the 6th that's the real rental period, that would actually make the situation worse and then payment would be due up to the 6th April(!)

greatcrested

militantconsumer said:

Firstly - that term presumably applies to a fixed term tenancy that has since expired so the agreement has become periodic. You'll have to check whether it applies to the periodic agreement, which is legally a separate tenancy. It would do, if a statutory periodic tenancy, but it's theoretically possible (if unlikely) that there is an agreement for a contractual periodic tenancy with different terms.

Yes I didn't include it, but another term states that "the tenancy will continue after the end of the Term becoming a periodic tenancy on the same terms and conditions" - so I don't think there's any issue there.

Although it does not specifically state a CPT will arise, the fact that the contract specifies a non-standard notice period in a subsequent periodic tenancy is evidence of a CPT.

This matters because in a SPT the notice would, indeed, require notice to expire in line with the tenancy period.

militantconsumer

The Tenant may terminate this Agreement by giving to the Landlord or the Landlord's Agent one calendar month's notice in writing (not necessarily to the end of a calendar month) effective not sooner than the end of the Term of this tenancy.....

I think there's still a question to be answered here. How can the words "not necessarily to the end of a calendar month" be in the tenancy agreement as the notice that the Tenant has to give under the section "Notice of Termination by Tenant" but the landlord can still enforce a notice period that does in fact run up to the end of a calendar month? It seems to completely contradict what has been agreed, does it not? (I am assuming here that "the end of the Term of this tenancy" refers to the initial 12 month term, not any month to month term under the subsequent periodic tenancy)

greatcrested

My understanding of this is that the main statement " by giving to the Landlord or the Landlord's Agent one calendar month's notice" refers tothe length of notice required. eg 22nd Feb to 21st March.

The bracketted, and to my mind superfluous , words "not necessarily to the end of a calendar month" are re-iterating that by saying notice does not need to expire at the end of a month ie 31st March, 30th April, 31st May etc. In other words it can end mid-month provided it is a calender month from when served (22 Feb to 21 March)

militantconsumer

Thanks to the people who provided these answers. Looks like the way the forum now works the posts got a bit out of order!

I still think that clause in the tenancy agreement is arguably misleading. It really does imply that a tenant can give a calendar month's notice at any time of the month, with the part in brackets reinforcing that it can be at any time of the month. If there is a legal "tenancy period" lurking in the background that the tenant's notice has to be served in accordance with, surely it should say that in the agreement, not only get revealed when you try to serve notice at a different time!

Further to that, I guess the options we're looking at are:
1. Appeal directly to the landlord, who is at least a reasonable person and may look favourably having received all of the rent on time for many years throughout the whole tenancy.
(Failing that...)
2a. Pro-rate the final rental payment to the desired end date and then let them decide if they want to go through a deposit resolution process to recover disputed rent arrears. As I understand it, that won't cost the tenant anything in legal fees or other risks even if they lose anyway. I wonder if there are any other legal bases for challenging this, even if it's missing from the Housing Act for example. Like just general rules on how consumers/tenants are meant to be treated fairly - I have no idea on the intricacies of the law in this area.
(And also...)
2b. I think instead the tenant can refuse the mediation and insist on it going to court? That might increase the chances of the landlord deciding not to pursue it. I also feel that a court might look more favourably on a tenant and examine the actual contract and whether it's misleading, whereas the deposit scheme hearings are probably a bit like the FOS in that they're packed with industry people who often accept something unreasonable is just the way things are and don't do very well at challenging the status quo.

princeofpounds

militantconsumer said:

I still think that clause in the tenancy agreement is arguably misleading. It really does imply that a tenant can give a calendar month's notice at any time of the month, with the part in brackets reinforcing that it can be at any time of the month. If there is a legal "tenancy period" lurking in the background that the tenant's notice has to be served in accordance with, surely it should say that in the agreement, not only get revealed when you try to serve notice at a different time!

I agree it's misleading. But the issue isn't about when the tenant can give notice. It's an issue about how much the tenant is liable to pay having given that notice. That is where the apportionment issue comes in.