Here is a blog clinic quesiton from Melanie who is a tenant:
Can you leave at end of fixed 12 months assured shorthold tenancy agreement? Do you have to give 1 months notice to say that you are leaving on the expiry date or can yoy leave without notice?
This is a good question and there is a difference of opinion about it. My view, backed up by the OFTs report on unfair terms in tenancy agreements, is that no, the tenant does not have to give notice.
However if he stays just one day after the end of the fixed term, then a periodic tenancy will be created and he (or she) will have to give the relevant notice period – usually one month if it is a monthly rent.
Landlords get very annoyed about this. With reason, as if the tenant is leaving they need to arrange for a checkout meeting and to start advertising for new tenants. However they don’t want to do this (as it will cost them) if the tenant is staying on.
I have a clause in my tenancy agreements requiring tenants to let landlords know whether they are leaving or not within 14 days of the end of the fixed term, on the basis that it is information rather than formal notice to leave. As tenants cannot be required to do this, clauses requesting it are likley to be void under the Unfair Terms in Consumer Contracts Regulations 1999.
I wrote about it here. I am still not entirely sure if it is valid or not. Still, most people are reasonable and will not want to be obstructive and inconvenience their landlord, and so will keep them informed of their intentions.
Others won’t. In my view there is little a landlord can do about it if his tenant pops off at the end of the fixed term without warning. But you may have a different view.
This is just an OFT infatuation based on the fact that if you rent a hire car at Hertz on holiday you don’t have to ring them middle of the second week and say you are indeed bringing the car back. Because you have contracted to do that so you just do it.
What the OFT doesn’t realise is that Hertz couod have such a clause in their contract if they wanted to.
Problem is Judges in lower Courts are swayed by OFT opinion. But that is all it is – opinion. There is nothing in the 1988 Act to prevent such a clause. he OFT argues there is nothing in the Act that says you can.
Just their opinion, not Law, like so many things they pontificate on.
Why would there be a problem with leaving on the date a legal contract actually ends? How would a judge enforce something that doesn’t exist? I agree that it makes it easier for a landlord to market a property, if he has good notice and it’s polite to let the landlord know, but surely, providing the rules are followed by the tenant, the landlord should anticipate a tenant not continuing a tenancy, on a periodic basis, if the tenant does not wish to. It’s unfortunate for a landlord, but both parties have their own interests.
Tenants aren’t keen on being told that they have to give notice when they don’t legally need to; particularly if they have steep deposits, rent up front and application fees to pay.
Is lack of notice in this scenario really a problem for many landlords in practice? As an agent, we find tenants are usually very happy to keep us informed.
Even acting for landlords, they sometimes need to be reminded that this isn’t a lease on some piece of office equipment; it’s someone’s home. No one should be suprised that the law (or the OFT) may sometimes seem to be in the tenant’s favour.
Letting property is a business and inevitably it isn’t without risk. The landlord’s financial model must also allow for an assumed void period between tenancies because sometimes that’s just the way the cookie crumbles. If they fail to do this basic budgeting then either a) they don’t have the right business accumen or b) have probably over-strectched themselves. Either way, they probably shouldn’t be letting property.
Apologies for my poor spelling above. It is Friday afternoon!
A landlord can state what happen in any reference he/she is asked to give, it is up to the person reading the reference to interpret the facts in whatever way the decide to.
Maybe as well as the AST agreement, tenants should be give a list of actions that are likely to lead to a less then good reference regardless of if the actions are legal.
With all the new “social” referencing services that are starting to be used by lots of landlords a tenant is far more likely to find that their past actions are taken into account even years later.
It has always been the case that a tenant can leave at the end of a fixed term without notice. It is the nature of a fixed term that it is, well, fixed. To be required to give notice of something that is inevitable is a nonsense. Though it could be construed as a notice to terminate in disguise, slightly different is the requirement to give notice of intention to leave. The first problem with such a notice is that the tenant may only form an intention to leave just before the end of the fixed term. The second is that such a notice has no effect because (a) it cannot operate to end the fixed term (b) section 5(5) HA 1988 prevents it from operating to surrender the periodic tenancy which will arise if the tenant stays on and (c) it is no more than an expression of intent. The best a landlord can hope for is, as said above, that the tenant will recall the requirement and let the landlord know his intentions.
There is in any event no need for landlords to get worked up about the injustice of it all because a simple solution is at hand. All they need to do is to grant a fixed term and provide that it continues as periodic. The drafting should be left to someone who knows what he is doing to ensure that it is right and that any necessary consequential changes are made.