Tenant notice on vacating when the fixed term ends
It can be very inconvenient and sometimes downright difficult, if a tenant leaves without warning.
Perhaps one of the most controversial clauses in my Landlord Law tenancy agreements is the one which says:
During the last month of the fixed term (and not later than seven days before the end of the fixed term), you must tell us whether you intend to stay in the Property or leave at the end of the fixed term.
“This clause is ridiculous” complains one landlord, “Seven days is far to short a time to deal with all that needs to be done”. “How can I arrange for a check out meeting if I am only given seven days notice?” says another, while a third points out her agreement with her letting agent obliges her to give three months notice “so surely it is reasonable to expect my tenants to give me two months”.
What none of these landlords seem to realise is that I am trying to do them a favour. In law, a tenant does not have to give any notice at all, if he wants to leave at the end of the fixed term period. None.
So under the Unfair Terms in Consumer Contracts Regulations 1999, if I put in a clause telling them to give two months notice, the Office of Fair Trading will be on my back telling me to take it out as being unlawful. For example in their 2005 guidance on Unfair Terms in Tenancy Agreements they say at paragraph 3.78:
We appreciate that landlords will want to ensure that their properties are not left empty between tenancies, but object to terms that impose a contractual obligation on the tenant to give notice in order for the tenancy to be terminated at the end of the fixed term.
That is pretty clear.
Landlords are right though in saying that it is unfair and one sided. A tenant can lead a landlord to believe that he is staying on and then swan off on the last day of the tenancy agreement leaving his landlord to find out that he has gone. The landlord will not have made any arrangements to get a new tenant in, and so will have a void. Which could cost the landlord a lot of money, particularly if he has high mortgage fees to pay.
The reasoning behind the rule of course, is that if the tenant has signed up for, say, six months, that is the totality of his commitment. If the landlord complains about him moving out he can say “Well I only signed up for six months. What did you expect?”.
The problem being however, that under section 5 of the Housing Act 1988, he can if he wants stay on, and statute will create a new tenancy, a statutory tenancy, for him. He has the legal right both to stay and to go.
If he stays on, even just one day after the end of the fixed term, then he will be required to give the landlord not less than one months notice, and the landlord can claim rent in lieu of notice if he leaves abruptly without doing this. But not if he leaves at the end of the fixed term.
In order to mitigate this harsh rule, I thought ‘What if the tenant were required, not to give formal notice to vacate, but just to tell the landlord whether or not he was leaving?”
The landlord would not be entitled to claim rent in lieu of notice if the tenant left without informing him first. However if the landlord incurred extra expenditure because of the tenants failure to keep him informed (for example if there were extra charges involved in arranging the check out meeting at short notice) then the landlord could charge these to the tenant. It would be better than nothing.
As the normal notice period a tenant has to give in most tenancies is one month, I felt that insisting that the tenant tell the landlord if he is going two months before the end of the tenancy would be vulnerable to being found unfair. I therefore picked on the wording “last month of the fixed term (and not later than seven days before the end of the fixed term)”.
I am considering changing it to not less than fourteen days, although it still worries me a bit.
But what do you think? Is my clause the best way to deal with the situation? What do you do? Do you think I am safe in increasing the minimum period from 7 days to 14?