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  • G_M
    • #4
    • 19th Feb 15, 5:15 PM
    A) What happens when a fixed term AST ends; B) How can LL or tenant end an AST?
    • #4
    • 19th Feb 15, 5:15 PM
    (England/Wales)

    A) What happens at the end of the Fixed Term of an AST?
    1) Tenant wishes to leave; 2) Tenant wishes to stay; 3) Landlord wishes tenant to leave

    1) Tenant wishes to leave

    Tenants can leave when the FT ends without notice, but see 2b if the tenant stays one+ day. But notice helps with returning keys, check-out inspection, return of deposit & references.


    2) Tenant wishes to stay

    a) a new Fixed Term tenancy can be negotiated. Since June 1st 2019, a fee can only be charged if the original contract specified this, and only till June 2020.

    b)
    A Contractual Periodic Tenancy (CPT) may automatically follow the FT if the Tenancy Agreement says so. Also known as 'rolling' or 'monthly'. Read the TA to check. No further action is needed.

    c) a Statutory Periodic Tenancy (SPT) arises automatically in the absence of a CPT. No agreement is required. No action is required (Housing Act 1988 S5). It continues till the tenant or a court ends it (see below). Nothing need be signed. The terms of the SPT eg rent remain as before.

    When choosing a new FT or SPT:

    i) A FT gives security: the LL is guaranteed income & the tenant is guaranteed a home (but see Break Clause below)

    ii) A SPT gives flexibility but less security: both tenant & LL can end the tenancy (see below).

    iii) A FT may require a fee: a SPT should not.

    A new FT agreement may be at a new rent. See this post for how rent can be changed.


    3) Landlord wishes tenant to leave

    The landlord/agent must serve a Section 21 Notice, either
    * S21(1)(b) (tenancies pre 1/10/15) or

    * Form 6a (tenancies since 1/10/15)

    Both must give 2 calendar months notice, ending on or after the end of the FT.


    A S21 is invalid if:

    a) served before deposit is registered & the deposit's Prescribed Information given to the tenant
    b) incorrect dates/notice period
    c)
    expiry date is within 1st 6 months of original tenancy
    d) For tenancies starting from 1/10/15:
    - served in 1st 4 months
    - new tenancy Prescribed Information was not supplied (EPC, gas report,
    "how to rent), or
    -
    council has served a repairing enforcement notice on the landlord, following a complaint by a tenant. See
    Enforcing repairs.

    See S21 checklist here.

    A S21 is not a notice to quit. The tenant does not have to leave. The LL must apply to court for a possession order. If the S21 was valid, the court will automatically grant possession - no reason is needed.


    B) How can a tenancy be ended?
    1) Mutual Agreement; 2) During a Fixed Term; 3) At the end of a FT; 4) During a SPT; 5) Where LL has one of 17 grounds; 6) In a Contractual Periodic Tenancy; (CPT) 7) Where LL breaches the contract

    1) Mutual Agreement.

    A LL and tenant can agree an Early Surrender at any time, on any terms they wish, ideally in writing with the date of surrender & any conditions or costs

    Outside this, the law specifies:

    2) During a Fixed Term

    Neither landlord nor tenant can end a Fixed Term early unless:

    a) there is a 'Break Clause' (often at/after 6 months). Terms vary so read the contract. The LL & tenant must have the same rights or it is unfair & unenforceable.

    The LL must also serve a S21 Notice.

    b) in one of 17 specific circumstances (grounds) the landlord can serve a Section 8 (schedule 2) Notice eg for rent arrears.

    With both a) or b) above, the landlord must still go to court for a Possession Order.

    3) At the end of a Fixed Term

    A tenant can leave without giving notice; a Landlord must serve a S21 Notice at least 2 calendar months in advance.

    4) After the end of a Fixed Term (
    SPT)

    a)
    Tenant's notice
    Where rent is paid quarterly/monthly/weekly, then Tenancy Periods run quarterly/monthly/weekly starting the day after the FT ended.

    A tenant can end

    * a monthly SPT with 1+ months notice in writing ending on the last day(or 1st - Crate v Miller 1947) of a Tenancy Period sent to the address "for serving notices".

    * a weekly SPT with at least 4+ weeks notice ending on the last day of a Period.

    Example:

    A 6 month FT tenancy starts on 24th June so ends on 23rd December. Rent is monthly. If a SPT follows, the Tenancy Periods run from 24th to 23rd of each month. The tenants Notice must end on the 23rd (or 24th).

    If the tenant serves notice on 22nd March, notice expires on 23rd April (a full month ending on the last day of the Period). But if the notice was two days later (25th March) notice would expire on 23rd May - a month later (since 23rd April is less than a month).

    The day rent is paid is irrelevant.

    In a joint tenancy, any tenant can serve notice. It binds them all. If the tenants don't all vacate, the LL may charge double rent and/or evict.

    b) Landlord's notice
    A landlord must
    give at least 2 calendar months notice (2013 Court of Appeal case Spencer v Taylor), via a S21(1)(b) (tenancies started pre 1/10/15, or form 6a (tenancies post 1/10/15)

    The S21 must be valid - see section A3 above.

    5) Where the landlord has one of 17 reasons eg rent arrears

    During a tenancy, a S8 Notice can be used by a landlord, but must still go to court after 14 days. There are 17 specific grounds for a S8 For ground 8, the tenant must owe two months rent when the S8 is served and when the case comes to court.

    6) In a Contractual Periodic Tenancy

    A CPT can be created either

    i) from the start (no Fixed Term - tenancy is 'rolling' from Day 1) or

    ii) from the end of the Fixed Term, if the contract specifies this

    a) Tenant Notice. The tenant must give notice as stated in the contract. If the contract is silent, or was verbal, it should be a months notice (monthly tenancy) or 4 weeks (weekly tenancy), ending on the last day of a tenancy period.

    b) Landlord Notice.
    In i)
    above, the landlord must give the tenant 2 full Tenancy Periods notice ending on the last day of a Period plus any requirement in the contract by serving a S21(4)(a) for tenancies before 1/10/15 or form 6a for tenancies from 1/10/15.

    In ii) above, the landlord can give the tenant 2 calender months notice (in addition to any requirement in the contract) by serving a S21(1)(b) for tenancies started before 1/10/15, or form 6a for tenancies from 1/10/15.

    The S21 must be valid - see section A3 above.

    7) Where a landlord breaches the contract

    "A repudiatory breach of a contract is a serious fundamental breach which goes to the very core of the contract. It effectively deprives the innocent party of the substantial benefit of the contract and shows evidence on the part of one of the parties that they no longer intend to be bound by an essential term of the contract."

    The breach must be of a sufficiently fundamental character, to amount to repudiation. Repairing issues, for example, would not normally constitute a repudiatory breach unless very severe. See'Hussein & Others v Mehlman'

    Because of the uncertainty of the law in this area, tenants are advised to seek specialised legal advice before relying on this.

    C) General law

    Address for the serving of Notice
    Both landlord and tenant should serve notice by letter unless the tenancy agreement states otherwise. An informal heads-up of intention can be useful, but it is the written letter that matters. Notice period starts the date the letter is served, not sent.

    1) the landlord should serve notice on the tenant at the address of the property.

    2) the tenant should serve notice on the landlord at the address provided "for the serving of notices". If no address is provided in writing the tenant need not pay rent (
    Landlord and Tenant Act 1987)

    3) The tenancy agreement may state how service should be made eg 1st class post etc.

    Recorded Delivery may not be signed for/accepted, however unless the tenancy agreement says otherwise, notice is deemed to be served even if the letter is returned undelivered discussion here.

    If 1st class post with 'Proof of Posting' is used,
    notice is legally 'served' after 2 postal days. If hand-delivered - get a receipt or have a witness.

    S21 Notices.
    A S21 Notice is not a notice to quit & does not end a tenancy. The LL must apply for a court possession order.

    The Court of Appeal ruled (Laine v Cadwallader) that in a SPT, one month Notice, ending with a tenancy period, was required by a tenant based on common law.

    REFERENCES

    Housing Act 1988
    Section 5 (Statutory Periodic Tenancy)
    Section 21(notice to gain possession)
    Schedule 2 (17 S8 Grounds a LL can use)

    S21 Notice (Form 6a) & PI - tenancies from 1/10/15 (SI 2015 No. 1646).
    Example S21 (4)(a) Notice - Contractual PeriodicTenancies with no fixed term, starting pre 1/10/2015
    Example S21 (1)(b) Notice - all other tenancies starting pre 1/10/2015
    S21 checklist (Is a S21 valid?)
    Example S8 Notice (possession for rent arrears etc)
    "how to rent" (gov leaflet - tenancies post 1/10/15)
    Spencer V Taylor (LL can serve 2 calender month notice in fixed term and periodic tenancy after a fixed term)
    Deregulation Act 2015 (S33: Retaliatory eviction)
    Tenant Fees Act 2019 Abolition of most tenant fees from June 1st 2019 Gov Guidance Notes
    Shelter information on 2019 tenant fees.

    Laine and Mitchell v Cadwallader & Cadwallader (2001) (tenant's notice in a SPT)
    Crate -v- Miller [1947] (Notice can end last or 1st day of Tenancy Period)
    Distress For Rent Act 1737 S18 & Landlord and Tenant Act 1730 S1(Double rent if tenant stays after giving notice) explanation
    Hussein & Others v Mehlman [1992] Repudiatory breach of contract
    Landlord & Tenant Act 1927 S23 (Service of Notice)
    Blunden v. Frogmore Investments Ltd [2002] (Service of Notice)
    Last edited by G_M; 01-06-2019 at 11:18 PM. Reason: S21 vaidity checker
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