Ending a shorthold tenancy agreement at end of fixed term? is two month notice period enforceable?

leh00

Evening all,

I have passed this matter to my solicitor for advice but given the weekend, I am looking for some advice from the wealth of expertise on this forum.

I have just exchanged on my first house purchase and have notified my landlord and my letting agent that I will not be renewing my shorthold tenancy agreement. They have had 30 days notice before the end date to the fixed term tenancy agreement but they are trying to inforce that I need to give two months notice? There key details of the agreement are as follows: 

‘The Terms of Tenancy

The Landlords lets to the Tenant the Property for a period of 12 months (“the Term”). The Tenancy shall start on and include the 10/12/2023 (“the Start Date”) and shall end on and include the 09/12/2024 (“the End Date”) and thereafter month to month but subject to the following break clause.

Break Clause

The Tennant agrees that the Landlord has the right to terminate the Tenancy after the first six months by giving the Tenant not less than two months’ notice in writing to end the Agreement.

 The Landlord agrees that the Tenant has the right to terminate the Tenancy after the first six months by giving the Landlord not less than two months’ notice in writing to be sent by first class post or hand delivered to the address specified in Schedule 3 clause 5.1 of this Agreement. To avoid any doubt between the parties it is agreed that the notice period cannot commence any earlier than the 10/03/2024 and cannot expire any earlier than the 09/06/2024.

Upon the expiry of this notice this Agreement [i.e. the Tenancy Agreement] shall cease except that either the Tenant or the Landlord can pursue their legal remedies against the other for any breach of any pre-existing rights under the Agreement apart from the pre-existing right to a fixed contract which is subject to the break clause.”

They are stating that clause 1.3 in Schedule 3 of the agreement applies:

1.3. The Tenant may at any time give the Landlord at least 2 months’ notice of his intention to leave the Premises at the end of, or after the Term of this Tenancy as set out in the Particulars clause 3 of this Agreement by written notice served upon the Landlord in accordance with Schedules 3 clauses 5.1 & 5.3”

2.1. If the Tenant vacates the Property during the Term apart from according to any agreed break clause which is included within the Agreement, The Tenant will remain liable to pay rent and any other monies payable under this Agreement until the Term expires; or the Property is re-let with the Landlord’s written consent whichever is earlier.

The agreement defines:

“term” or “tenancy” to mean the initial Term and includes any extension or continuation of the contractual Tenancy or any statutory period Tenancy arising after the expiry of the original Term

Do I need to give two months notice? or am I free end at the end the tenancy on the agreed fixed term on the 9th December without two months notice?

My understanding is this is a fixed term which expires on the 9 December 2024 and it has not rolled over into a periodic tenancy and the 2 month notice period is therefore unenforceable, and clause 2.1 stipulates I am only liable to pay rent until the expiry of the origional term (9th December 2024). What are peoples views on this?

Voyager2002

Explore the Shelter website, including the 'legal' section.

leh00

Voyager2002 said:

Explore the Shelter website, including the 'legal' section.

Thank you I have reviewed the Shelter website and their advice would seem to affirm my interpretation that a notice period is not required/enforceable at the the end of a fixed term assured shorthold tenancy. As supported by their cross-reference to case law Right d. Flower v. Darby (1786) 1 T.R. 159; Cobb v Stokes (1807) 8 East 358. 

However, they then go on to state "A tenant cannot end a fixed term tenancy by leaving on the last day of the fixed term if the agreement provides that it continues as a contractual periodic tenancy." which my agreement would indicate it does (why i have been forced to renew the agreement in every year comes into question then, landlords getting to have their cake and eat it comes to mind). However this appears to be contradicted by the agreement stating i am only liable for rent until the end of the fixed term.

leh00

having re-read the Shelter referenced case law 'Leeds City Council v Broadley (Rev 1) [2016] EWCA Civ 1213.' this seems to refer to and apply to tenants who have already transitioned into their period tenancy having remained in a property past the point their fixed term expires. To clarity i am still within my fixed term agreement

leh00

leh00 said:

having re-read the Shelter referenced case law 'Leeds City Council v Broadley (Rev 1) [2016] EWCA Civ 1213.' this seems to refer to and apply to tenants who have already transitioned into their period tenancy having remained in a property past the point their fixed term expires. To clarity i am still within my fixed term agreement

https://www.jbleitch.co.uk/news-insights/case-law-comment/leeds-city-council-v-broadley-2016/

Bookworm105

as you know, a LL is legally required to give a minimum of 2 months notice to a tenant, whereas a tenant only has to give 1 months notice 

unsurprisingly therefore LL seek to redress that imbalance by imposing a contractual term which makes the tenant give 2 months 

your clause 1.3 is doing exactly that. The wording is a bit woolly, but the intent is clear, if you do not wish to carry on with the tenancy after the end of the fixed term (ie let it become periodic) then you have to let the LL know at least 2 months before that date.
the clause also imposes the same 2 months notice period for leaving once the tenancy has become a periodic. Your contract is written so that it is clear that after the fixed term the tenancy will continue as a Contractual Periodic Tenancy. So, to end the tenancy you must give notice or it will continue.... before the fixed term expiry date you could use the break clause notice terms, once it is periodic then 2 months notice applies.

on the face of it therefore you are in breach of the contract because you have not warned the LL at least 2 months in advance of the fixed term end date that you do not wish to roll over into a periodic tenancy and instead you will be leaving.

If you remain in physical occupation then obviously rent is payable.

If you have vacated the property then it is down to will the LL take you to court for financial damages incurred by the LL having had only 1 months warning instead of 2?
Matter of pure speculation if the LL will do that and what a court may decide that is worth in £

Voyager2002

Bookworm105 said:

as you know, a LL is legally required to give a minimum of 2 months notice to a tenant, whereas a tenant only has to give 1 months notice 

unsurprisingly therefore LL seek to redress that imbalance by imposing a contractual term which makes the tenant give 2 months

A term in a contract that contradicts the law has no effect.

Bookworm105

Voyager2002 said:

Bookworm105 said:

as you know, a LL is legally required to give a minimum of 2 months notice to a tenant, whereas a tenant only has to give 1 months notice 

unsurprisingly therefore LL seek to redress that imbalance by imposing a contractual term which makes the tenant give 2 months

A term in a contract that contradicts the law has no effect.

"The law" permits a Contractual Periodic Tenancy to be created and for the terms of that contract to be legal, it is not a case of statute trumps contract in that context as there is no contradiction.

1 month notice refers to a Statutory Periodic Tenancy, the whole point being that such has not been created as instead it is a Contractual Periodic Tenancy bound by its contract terms 

Murphybear

Voyager2002 said:

Bookworm105 said:

as you know, a LL is legally required to give a minimum of 2 months notice to a tenant, whereas a tenant only has to give 1 months notice 

unsurprisingly therefore LL seek to redress that imbalance by imposing a contractual term which makes the tenant give 2 months

A term in a contract that contradicts the law has no effect.

When I was doing my training for ARLA exams it was drummed into us that “statute overrides contract”.  

Bookworm105

Murphybear said:

Voyager2002 said:

Bookworm105 said:

as you know, a LL is legally required to give a minimum of 2 months notice to a tenant, whereas a tenant only has to give 1 months notice 

unsurprisingly therefore LL seek to redress that imbalance by imposing a contractual term which makes the tenant give 2 months

A term in a contract that contradicts the law has no effect.

When I was doing my training for ARLA exams it was drummed into us that “statute overrides contract”.  

correct, and statute expressly permits the formation of a contractual periodic tenancy which may contain notice periods that are LONGER than the minimum required under statute.
Statute addresses minimum not maximum notice periods 

housebuyer143

While you probably have to give 2 months notice, is the landlord really going to take you to court for the missing rent, it's unlikely. They will however take your deposit. 
I would suggest giving notice, telling them you won't be there after a set date and ask them to remarket it early. If tenants are found earlier then you want to be released from your contract earlier.