This is a question to the blog clinic from Sonia (not her real name) who is a tenant.
After renting a property for just under 5 months I was contacted by the landlord and I informed him I wanted to rent for a further 6 months after my fixed term ended. This was agreed. Two weeks later the landlord surprised me by saying he unfortunately needed his property back for a family member. I was given a two-month s21 notice to quit which expires one month after the end of my 6 months fixed term i.e. 5 months into my fixed term.
I found another very suitable property within 4 days of my notice being served and notified my landlord that I wanted to leave on the last day of my fixed term, all rents being paid.
My landlord has refused to accept my notice, saying I had missed the rental date by 4 days, and saying I am liable for rent to the end of the s21 notice i.e. requiring one more month of rent.
There is a term in the agreement as follows “The tenant can only serve notice in writing one complete month from the end of the tenancy. The notice must be served on the rental due date, in accordance with the housing act 1988” There is nothing in the agreement to say that when the fixed term expires the tenancy will continue as a periodic. So I am unsure if I needed to give notice or not!
Finally though….. my actual question…. is there any case law on this specific issue i.e. where a clause requiring notice at the end of a fixed term has been tested in court?
The landlord has probably budgeted to receive your rent up to the end of your section 21 notice and is naturally reluctant to agree to waive this.
This does not mean, however, that you are liable to pay it!
I am assuming by the way, in this answer, that you did not actually sign a new tenancy agreement and that it had just been agreed that you would stay for six months on a periodic tenancy.
The tenancy agreement clause
The clause in your tenancy agreement is not, in my view, enforceable. The Housing Act 1988 does not require tenants to service notice ‘on the due rental date’. I am not aware of any part of the Housing Act 1988 which requires a tenant to serve a notice ON a particular day. It’s always about how much notice you give.
So a landlord can’t say ‘Ha ha! You didn’t serve notice last Thursday so now you can’t serve notice to quit for another month’.
Apart from that, under the unfair contract terms rules (now in the Consumer Rights Act 2015) a landlord cannot take away a tenant’s rights under the common law. Which this clause appears to be doing.
After the fixed term ends
A tenant cannot be forced to pay rent after the fixed term ends if they have moved out on or before the last day of the tenancy fixed term.
The reason for this is that the tenancy will end at the end of the fixed term. Because that is what happens at the end of fixed terms. That is how long the parties have agreed that the tenancy will last. If (and only if) the tenant has remained in occupation after the fixed term has ended, will a new ‘periodic’ tenancy be created.
This will generally happen automatically under section 5 of the Housing Act 1988. Or under the terms of the tenancy if this provides for a contractual periodic tenancy. However, it will not happen if the tenant has moved out first. Because a periodic tenancy is conditional upon the tenant still being in occupation after the end of the fixed term.
So if the tenant has moved out, the tenancy has ended, and no new periodic tenancy has been created – the landlord is not entitled to any rent. Because the tenancy no longer exists.
I am not aware of any case just on this point. This is probably because no solicitor or barrister would want to argue it as they know that they would lose.
However if anyone is aware of any relevant case, please let us know in the comments.