A question of a tenants notice to his landlord

Here is a question to the blog clinic from John (not his real name) who is a tenant.

I am a tenant. I entered into a AST for 6 months in 11. At the end of the AST, I renewed it with the landlord once or twice for another 6 or 12 month terms (can’t remember).

At the end of the term, in July 2013 I requested we continue the tenancy on the basis of a periodic tenancy due to the repeat rent rises. The landlord requested that he would only agree to this if I were to agree to a 3 month’s notice i.e. I would have to hand in a 3 month’s notice from the rent due date. I agreed to this and so we continued on the basis of an UNWRITTEN periodic tenancy.

In Sep 2014, the landlord notified me about yet another rental increase and also requested that I should sign a 6 month AST. However, I wrote back saying that I was now going to actively look to buy a house as I couldn’t afford the rental increases. In the same email, I added “Please can you therefore convey to the landlord that we would like to continue on a periodic monthly tenancy until we find a property. I will of course give you the requisite 1 month’s notice (or even more where I can) once I have exchanged contracts on a property purchase.”

Please note that I did not specify as to whether or not the notice will start from a “rent due date”. I simply wanted to change the terms to 1 month’s notice i.e. as and when I hand in a notice, the 1 month will start from that day. The landlord, by acquiescence, agreed and we didn’t sign an AST and continued with a periodic tenancy.

On 2nd December 2014, I exchange contracts on a property I was buying and so I submitted the agreed 1 month’s notice to my landlord. However the landlord came back saying that as the rent due date has always been the 1st of each month, I am therefore late by a day and so the earliest I can vacate, under the statutory periodic tenancy rules, is going to have to be the 1st of February 2015. I disputed this because in my email of Sep 2014 I had not made any references to rent due dates. The landlord argues that my email of Sep 2014 is irrelevant as the periodic tenancy is a statutory one and the statute requires the tenant to give 1 month’s notice FROM THE RENT DUE DATE.

My position however is that we didn’t have a statutory periodic tenancy, rather what we had was an unwritten Contractual Periodic Tenancy, the terms of which both parties have agreed from time to time e.g. rental increases and changes to the notice period.

I questioned the landlord that if we were operating under a statutory periodic tenancy, then how comes he asked me to agree to a 3 month notice period, in violation of the statutory requirements, in our email exchanges of July 2013. However, he is avoiding answering this question and says that it’s one thing what the parties agree among themselves and it’s quite another thing what a court would accept!

Can you please advise whose interpretation is correct? Is the landlord right in that we were operating under a statutory periodic tenancy and hence I handed in my notice by a day late and it should have been 1 month’s notice from due date as required by statute? Or is my interpretation correct i.e. we had a contractual periodic tenancy and as we had agreed a simple 1 month’s notice (with no mention of due dates), therefore my 1 month’s notice of 2nd Dec 2014 was legally sound and I could therefore vacate the property on 1st Jan 2015. Kindly advise?

I vacated the property, as per my interpretation, on 1st Jan 2015. I handed the keys back to the landlord on that date. He argued and did not want to accept the keys and wanted to post them back to me. I insisted he keep them as I had already moved out. The landlord found tenants for the property on 15th Jan and so he now, in line with his interpretation, wants to deduct 2 weeks’ rent (from my deposit monies). That’s £550.

Answer

The nature of your periodic tenancy.

In most cases a periodic tenancy arises automatically, without the parties having to do anything about it, under s5 of the Housing Act 1988. This is known as a statutory periodic tenancy (as it is there because statute said so).

Here the periodic tenancy will be on the same terms and conditions as the preceding fixed term tenancy (so you do have a written tenancy agreement), and the ‘period’ relates to how the rent is paid. So if the rent is paid monthly, the tenancy is a periodic one, if the rent is paid quarterly, the tenancy is a quarterly one, etc.

The landlord cannot stop this happening, however if you fail to reach agreement he can serve a section 21 notice and then evict you through the courts.

In this case you reached agreement. There are two interpretations of this:

• That the 3 month notice requirement was invalid as you could stay anyway and the notice period for a monthly periodic tenancy is not less than one month
• That as the landlord refrained from issuing a section 21 notice and evicting you on the basis of your agreement, you were bound by it.

Note by the way that the rules regarding tenants’ notices to quit are common law rather than statutory and I explain them here.

Without having more information about the circumstances of what happened I can’t really say which of the alternatives applied. For example if the landlord had served a section 21 notice and was about to evict you, the agreement to give the three months could well be binding – the landlord allowing you to stay in exchange for you agreeing to give a longer notice period.

Did the notice period change?

We then need to consider, if the three months notice was binding on you, whether this changed as a result of your discussions last September.

The first thing to say here is that if there is a contractual agreement, this cannot be changed (or varied) by one party unilaterally. It has to be by agreement.

I am not convinced that (if the three months notice was binding) a variation can be deemed to take place just becasue the other party fails to take any action. Also, you are claiming that by saying that you would give ‘one months notice’ this was intended to be one months notice from the date of service rather than as per the common law rule, where the notice period has to end at the end of a period of the tenancy.

Without seeing the correspondence it is difficult to say, but unless you specifically said this and the landlord specifically agreed to it, my view is that this is not something that can be implied.  Particuarly as for a variation to be binding (as with a contract) there need to be ‘consideration’ – (in this context being a legal term meaning something of value) – flowing both ways.  Or it is unenforceable.  This is a fundamental rule in contract law.

The landlord had already allowed you to stay in exchange for you agreeing to a longer notice period.  What then was the ‘consideration’ to support this new variation?

I also don’t think that the fact that the landlord refrained from insisting on the new tenancy agreement and rent increase, is proof that he agreed to what you said. You say ‘by acquiescence’ which presumably means that he said nothing and you just continued living in the property.

It is far more likely that he decided to take no action because it looked as if you would be leaving in a few months and he decided to wait until you left.

So my view is that it is unlikely that there was (in September) an agreed variation to your periodic tenancy to the effect that you would give one months notice from the date of service.

The notice you needed to give when you left

First of all it is worth saying that your landlord cannot force you to live in the property against your will. You can move out.  It is all about how much rent you are liable to pay him after you have vacated, as rent in lieu of notice.

I think there are two alternatives:

• You are still liable to give the three months notice that was agreed, or
• The agreement to give three months notice was unenforceable and so the common law rule had applied throughout.

The common law rule is not quite as you say. It is not so much the date that the notice is GIVEN which is important (in that you do not HAVE to give notice on a particular day) but the notice PERIOD that you are supposed to give, and when it ends.

So if, say, your fixed term ended on 5 July, a statutory periodic tenancy would arise immediatly after on the following day and run from the 6th day in the month to the 5th day in the month. (The date you actually pay rent does not change this).

So, in this scenario, your notice period would be until the next 5th day in the month after one month after you served your notice.

Another way of looking at it is that your notice period is between one and two months, depending on when in the month you serve it.

Note however that if new tenants moved in on 15 Jan, he cannot claim any rent after that date as renting the property to the new tenants ends your liability.

Hopefully this answer will give you sufficient information to work out what the landlord is entitled to.

If you are unable to reach agreement, then you can challenge the deduction made from your deposit using the free adjudication service provided by your tenancy deposit scheme.

Note by the way, that I have not considered issues about tenancy deposit protection in this answer but it may be something you want to check.