Here is a question to the blog clinic from Peter (not his real name) who is a tenant
Prior to signing a one year AST I asked the agent for a copy of the draft contract, which I read and it was similar to my contract at a different property. The contract was for 1 year, and then becoming periodic. The draft contract clauses were 2 months notice from the landlord under an S21 and one month from the tenant.
When the contract was ready for signing I asked the agent if there were any changes and he said no, so I signed the contract.
I have now discovered that the notice has been amended to 1 month by the landlord using S21 and 2 months from me. The rent is payable monthly.
As far as I can see the notice from the landlord is a breach of my statutory rights, and the notice from me an unfair clause. Is my understanding correct.
Answer
You don’t need to worry about this.
The landlords’ notice period
First – yes it is almost certainly an unfair clause. And void for that reason.
But more importantly, the rules about section 21 are set out in statute and cannot be changed by any contract term. So if your landlord serves a section 21 notice which only has a notice period of one month it will be invalid.
Meaning that you would have a defence if your landlord tried to use it to evict you.
The tenants’ notice period
As regards the increase of your notice period to two months – this is also unfair as under common law the notice period (for periodic tenancies) equates to the period. So if you have a monthly tenancy the notice period is one month.
So far as giving notice during the fixed term is concerned – generally this is not possible. It may be though that the two months notice period you refer to is for use during the fixed term – in which case it would be valid as the agreement would be giving you a break clause, which is not something you have during a fixed term under the general law.
If you want to give notice during the periodic tenancy though, you only need to give one months notice.
In general
Be aware that tenancy agreements can be misleading. Sometimes clauses inserted by the landlord or agent are actually invalid.
I explain this in a previous post here.
Why can’t a contractual periodic tenancy require the tenant to give 2 months notice?
What if a tenancy was written with a very long fixed term, but allowed both the tenant and the landlord to use a break clause at any point by giving two months notice? (What would the landlord do if the tenant ignored the break clause and did not move out?)
How does section 21 works if the period of a periodic tenancy is 2 months?
@Ian
1. I think it is arguable that if the period of the tenancy was monthly, any attempt by the landlord to impose a longer notice period on the tenant will be at risk of being found unfair and invalid.
2. The notice period would be two months. If the period was quarterly the notice period would be three months. The notice period can be more than two months but can’t ever be less.
So what prevents a contractual periodic tenancy with a period of 2 months, and half the rent due at the start of the period, and half due in the middle of the period?
You can try. Good luck arguing that one with the Judge.
There is no legal issue with contractually agreeing to a notice period different from the common law position.
I think it would have to be disproportionally long and without the tenant’s full understanding for the term to be deemed unfair.
I find such tenancy agreement preposterous, but at the same time it sounds legal (Except for two months payment period, out of which half is paid at the start and another half at the middle. I think landlords cannot justify such a legal twist) and I’m curious to see how a judge would decipher it.