Contractual Periodic Tenancy or Statutory Periodic Tenancy?

SanMiguel80

saajan_12 said:

SanMiguel80 said:

Could the line in the AST after the dates of the fixed term "thereafter from month to month" be considered as a clause describing a continuation?

No - It does not outline any terms, which you would need for a CPT. So where do you get the notice period etc from - the statutory terms, hence SPT. However regardless:

I found this section in the AST which includes the notice period. Would this make any difference to make it a CPT?

"The Tenancy shall be from and including the 28th day of September 2021 (‘the Commencement Date’) to and including the 27th day of March 2022 and thereafter from month-to-month and until terminated by either party serving a notice on the other in accordance with this Agreement (‘the Expiration Date’), ‘the Term’."

Bookworm105

SanMiguel80 said:

saajan_12 said:

SanMiguel80 said:

Could the line in the AST after the dates of the fixed term "thereafter from month to month" be considered as a clause describing a continuation?

No - It does not outline any terms, which you would need for a CPT. So where do you get the notice period etc from - the statutory terms, hence SPT. However regardless:

I found this section in the AST which includes the notice period. Would this make any difference to make it a CPT?

"The Tenancy shall be from and including the 28th day of September 2021 (‘the Commencement Date’) to and including the 27th day of March 2022 and thereafter from month-to-month and until terminated by either party serving a notice on the other in accordance with this Agreement (‘the Expiration Date’), ‘the Term’."

yes, CPT.

As an aside what notice period is mentioned in the agreement. The point of a CPT is often to disadvantage the tenant by aligning their notice period with that of the LL, so both parties have to give 2 months, whereas in an SPT the legal position is 1month for tenants and 2 for LL (assuming rent paid monthly) as the latter is legal minimum for the LL in all instances,

SanMiguel80

Bookworm105 said:

yes, CPT.

As an aside what notice period is mentioned in the agreement. The point of a CPT is often to disadvantage the tenant by aligning their notice period with that of the LL, so both parties have to give 2 months, whereas in an SPT the legal position is 1month for tenants and 2 for LL (assuming rent paid monthly) as the latter is legal minimum for the LL in all instances,

"At the end of the initial fixed term as specified in clause 2 hereof, the Term shall continue on a month- by-month basis until either party shall serve on the other a written notice to bring the same to an end. Such notice, when served by the Landlord, should expire not less than two months after the same shall have been served on the Tenant. In the case of a notice served by the Tenant, such notice should expire no less than one month after service of the same on the Landlord."

OK - Just to confirm, are you saying this is a CPT or SPT?

Bookworm105

SanMiguel80 said:

Bookworm105 said:

yes, CPT.

As an aside what notice period is mentioned in the agreement. The point of a CPT is often to disadvantage the tenant by aligning their notice period with that of the LL, so both parties have to give 2 months, whereas in an SPT the legal position is 1month for tenants and 2 for LL (assuming rent paid monthly) as the latter is legal minimum for the LL in all instances,

"At the end of the initial fixed term as specified in clause 2 hereof, the Term shall continue on a month- by-month basis until either party shall serve on the other a written notice to bring the same to an end. Such notice, when served by the Landlord, should expire not less than two months after the same shall have been served on the Tenant. In the case of a notice served by the Tenant, such notice should expire no less than one month after service of the same on the Landlord."

OK - Just to confirm, are you saying this is a CPT or SPT?

you have a CPT - with the notice periods explicitly set out in writing 

saajan_12

SanMiguel80 said:

Bookworm105 said:

yes, CPT.

As an aside what notice period is mentioned in the agreement. The point of a CPT is often to disadvantage the tenant by aligning their notice period with that of the LL, so both parties have to give 2 months, whereas in an SPT the legal position is 1month for tenants and 2 for LL (assuming rent paid monthly) as the latter is legal minimum for the LL in all instances,

"At the end of the initial fixed term as specified in clause 2 hereof, the Term shall continue on a month- by-month basis until either party shall serve on the other a written notice to bring the same to an end. Such notice, when served by the Landlord, should expire not less than two months after the same shall have been served on the Tenant. In the case of a notice served by the Tenant, such notice should expire no less than one month after service of the same on the Landlord."

OK - Just to confirm, are you saying this is a CPT or SPT?

Now it does sound more like a CPT. However this alone doesn't really provide the magic key you think it does. The rent review clauses really define what the rent increase terms are, so that's what you need to argue is the actual new rent, with the S13 notice being irrelevant. 

SanMiguel80

saajan_12 said:

Now it does sound more like a CPT. However this alone doesn't really provide the magic key you think it does. The rent review clauses really define what the rent increase terms are, so that's what you need to argue is the actual new rent, with the S13 notice being irrelevant. 

Thank you that is useful to know. Calculating what the rent should have been owed using RPI instead of the S13 one implemented would certainly reduce the £7500 the LL solicitors are currently claiming.

Also if you could answer, I have just noticed today a clause in the Deed of Guarantee that states:

"This agreement will remain enforceable against the Guarantor(s) throughout the Tenant’s occupancy of the Property and will not be restricted to the fixed term specified within the Tenancy Agreement. To clarify should the Tenancy enter into a Statutory Periodic your obligations will continue."  

The Deed of Guarantee (DoG) states that my obligations will continue if the tenancy enters into a SPT, not a CPT. Do you think therefore this is enough to absolve my obligations for the above clause in the DoG?

To give some background and my main reason for fighting this claim by the LL against myself is that the LA/LL failed to contact me as guarantor on any issue relating to my SS's tenancy in over 2 and a half years. They didn't notify me when there were rent increases, failed to notify me of any unpaid rent, failed to notify me that a section 21 notice had been served and that he was then taken to court to be evicted which he lost, and then failed to inform me that the tenant had been evicted by bailiffs and he owed £7500 in rent. I only found out about any of this after he had been evicted as I hadn't had any contact with my SS for nearly 3 years at that time. I have tried to get him to pay these arrears or to negotiate with the LL but to no avail. The LA/LL response to my questions as to why didn't they contact me is 'they didn't have to". Had the TA/LL involved me at an earlier stage in the dispute they had with the tenant I would have most certainly intervened and resolved the matter sooner and would have reduced the LL's losses.

The LL solicitor in their recent reply to me even had the audacity to quote the Property Ombudsman in that "there is no time frame enforced by The Property Ombudsman (TPO) to inform a guarantor of any arrears being accrued by the tenant." The LA is a member of The Property Ombudsman and even displays their logo on their website, and therefore is signed up to their code of practice. One of the Codes of Practice (CoP) states:

“You must have procedures in place to notify both landlord and tenant (and guarantor if relevant) in a timely manner, of rent that has become appreciably overdue..."

So I am now in the process of registering a complaint to the LA for not adhering to these CoP's that they have signed up for, and if I get an unsatisfactory response back will then take this complaint further to the TPO. 

I know that I will most likely have to go back to my solicitor pretty soon with this matter, but I am just trying to get an idea of where I might stand on certain issues.

Many thanks for your help.

saajan_12

SanMiguel80 said:

saajan_12 said:

Now it does sound more like a CPT. However this alone doesn't really provide the magic key you think it does. The rent review clauses really define what the rent increase terms are, so that's what you need to argue is the actual new rent, with the S13 notice being irrelevant. 

Also if you could answer, I have just noticed today a clause in the Deed of Guarantee that states:

"This agreement will remain enforceable against the Guarantor(s) throughout the Tenant’s occupancy of the Property and will not be restricted to the fixed term specified within the Tenancy Agreement. To clarify should the Tenancy enter into a Statutory Periodic your obligations will continue."  

The Deed of Guarantee (DoG) states that my obligations will continue if the tenancy enters into a SPT, not a CPT. Do you think therefore this is enough to absolve my obligations for the above clause in the DoG?

The first part of that says its enforceable thoughout the occupancy, which was also during the CPT. The last sentence "To clarify.." is just extra info, which can be ignored since your argument is there is no SPT. A clarification doesn't change the first part which was clear in itself. Indeed it doesn't say that your obligations don't continue during a CPT. 

What you said earlier that your signature wasn't witnessed as the witness box was already filled in - that does invalidate it, but your problem will be proving that, which will be your word against theirs. 

Beyond that, I don't see another get out from what you have posted.

Bookworm105

Bookworm105 said:

SanMiguel80 said:

saajan_12 said:

Possibly the better argument is the rent review clause taking precedence - please quote the rent review clause in full. If its specific enough then arguably the new rent post RPI increase would apply instead of the S13. That's still within the bounds of the tenancy you guaranteed, so you'd still be liable for the RPI based arrears. 

The other thing I'd look at is whether the guarantee was valid in the first place - executed as a deed and witnessed? 

Many thanks for your replies. The below is copy and paste from the AST.

"Rent review.  It is agreed that the rent as defined in this Agreement will be reviewed on the anniversary of this Tenancy and upon each subsequent anniversary in line with the change in the Retail Prices Index (RPI) for the previous 12 months and the rent varied accordingly either by way of an upward or downward adjustment."

The guarantee was executed as a deed and it was witnessed. Although it was presented to me with the witnesses signature already in place before I had signed, and we never actually met at the time. But I signed it and submitted it to the LA so I doubt I have much of an argument with this.

the contract says your rent goes up or down every anniversary (and pedantically there is no option to agree on no change either).
An S13 notice cannot suggest a different amount to that per the contract calculation as the contract remains valid and the tenancy ongoing under it.

the witness is of your signature, not theirs, so given what you say the deed is invalid as your signature was not witnessed.

 as I previously said 
but as saajan says re the deed, your word against theirs