Is Termination Clause Legal? - 2 months notice

Fat.badger_2

Hoping someone in the know can kindly advise? 

I want to give one month notice to quit my rental soon as I've exchanged on a house but my LL is saying it's two months notice. (I’d always assumed it was one month because every September the LL likes to ask for extra rent or says he will give me my 'months notice.')

I originally took out a 12 month fixed tenancy in 2020.

Upon reviewing my original agreement entitled 'Assured Shorthand Tenancy Agreement' which was fixed for a 12 months period I have found the following clause titled ‘Months before Termination’:

‘If notice is not provide[d] at the date the agreement is due to terminate this agreement will continue until either party to this agreement provides two months’ notice of their intention to terminate this agreement.’

The LL does not use an agent and I’m pretty sure has just written a contract themselves using a template. 

There is no specific mention of the AST agreement becoming a contractual periodic tenancy and I didn’t sign anything else at the end of the tenancy. 

I don’t know if it is pertinent or not but the LL has definitely NOT protected my deposit in a deposit protection scheme. 

I want to know if I am relatively safe just to ignore the LL’s demands and just leave after I’ve served my one month’s notice to quit. 

Bookworm105

so what you are now in is called a CONTRACTUAL PERIODIC TENANCY, it does not have to state that in writing. It "merely" needs to have a clause referring to notice periods which are different to statutory law.

by signing the original tenancy you agreed to be bound by the terms that apply after the fixed term period has ended. 
As statutory law requires that a LL must give a minimum of 2 months notice, when writing the terms of a CPT, many LL will (unsurprisingly) put the same term on the tenant

You are required to give the notice stated in your contract - that is enshrined in common law,

the fact the LL has not protected your deposit is relevant only if the LL was serving notice on you, not you serving notice on the LL

Fat.badger_2

@bookworm105 what qualifies you to make that statement? Most material online points to the opposite of what you are saying.

Bookworm105

Fat.badger_2 said:

@bookworm105 what qualifies you to make that statement? Most material online points to the opposite of what you are saying.

why ask on here then if you are certain you are right

Fat.badger_2

@bookworm105 I'm not certain that's why I've asked for guidance - you've issued a righteous sermon.

BarelySentientAI

Fat.badger_2 said:

@bookworm105 what qualifies you to make that statement? Most material online points to the opposite of what you are saying.

AST goes periodic at the end of the term - either to CPT if there is something written or SPT if not.  Doesn't need to be specifically mentioned, that's just what legally happens.

You will have gone to CPT - because there is that particular wording that you highlighted - so the terms in that contract apply.

Nothing gives you the right to a one month notice period.

Deposit protection is a different issue not related to the notice period or the validity of the contract.

RAS

This is a contractual tenancy and you need to provide the required notice.

If the LL has failed to register your deposit, you can sue them for up to 3 times the deposit as a penalty. More likely, you'll get the deposit back and another equal payment from the court.

Fat.badger_2

BarelySentientAI thank you for response. if the LL sues for rent arrears or just withholds my deposit can I counter-sue for not protecting my deposit? 

BarelySentientAI

Fat.badger_2 said:

BarelySentientAI thank you for response. if the LL sues for rent arrears or just withholds my deposit can I counter-sue for not protecting my deposit? 

You can sue for that regardless:

https://www.gov.uk/tenancy-deposit-protection/if-your-landlord-doesnt-protect-your-deposit

https://england.shelter.org.uk/housing_advice/tenancy_deposits/what_to_do_about_an_unprotected_tenancy_deposit 

saajan_12

Fat.badger_2 said:

‘If notice is not provide[d] at the date the agreement is due to terminate this agreement will continue until either party to this agreement provides two months’ notice of their intention to terminate this agreement.’

...

There is no specific mention of the AST agreement becoming a contractual periodic tenancy and I didn’t sign anything else at the end of the tenancy. 

That specifies the notice as being 2 months after the fixed term. A statutory periodic tenancy only arises if this isn't specified, and hence you fallback to the statue, ie 1 tenancy period. 

A contract is still a contract without having to say 'contract' at the top.

Note the dates matter here it isn't as sim

Fat.badger_2 said:

I don’t know if it is pertinent or not but the LL has definitely NOT protected my deposit in a deposit protection scheme. 

I want to know if I am relatively safe just to ignore the LL’s demands and just leave after I’ve served my one month’s notice to quit. 

Well this gives you an out, in a "two wrongs make a right" sense. You are required to give the 2 months notice. If you only give 1 month notice, the LL can claim the 2nd month rent from deposit or otherwise. At the same time, the LL should have protected it, so you can claim a 1-3x penalty. If they never protected (as opposed to a smaller mistake in the paperwork) then the judge might award more than the minimum 1x, but if they don't play silly buggers and only deduct legitimately then probably less than the max 3x. So I'd guess 1.5-2x? 

For the two issues, you could either negotiate that they let you go with 1 month notice in return for not raising the deposit issue, or let it go to court and probably the two would balance out, so you end up in the same place as if you had 1 month notice and no deposit claim. No guarantees though. 

Fat.badger_2 said:

@bookworm105 what qualifies you to make that statement? Most material online points to the opposite of what you are saying.

Probably the same as what qualifies me and other posters.. experience tenancies from either side and being nerdy enough to look up the law. The statements are made free of charge though, and as such we're not going to also demostrate sources and 'prove' it to you. That's up to you. If you already have the other material online, and have checked its sources, then go with that. 

propertyrental

As others have said, it's a valid CPT. Slightly unclear if it's 2 calendar months notice, or 2 months aligned with the tenancy periods. However as periods are generally indivisible and full rent for the period would be due, best to time the notice expiry in line with the end of a period.

The failure to protect the deposit is a separate issue and you can claim the penalty for that. Notwithstanding your right to claim the penalty (up to 3 times the deposit) the LL could deduct rent arrears (in lieu of proper notice) from the deposit itself.