What happens if I stay on in my shared property after the fixed term ends?

Here is a question to the blog clinic fast track from Richard (not his real name) who is a tenant

Here is the background of our situation

1. Persons A, B and myself signed a joint AST contract which expires in about 9 days
2. Persons A has decided to move out by the expiry date and has looked for a new tenant (C) to replace him.
3. I am in the process of buying a property and therefore don’t want to sign a new fixed term 12-month contract with 6-month break clause. I am hoping that I will have the completion in about two to six weeks time
4. Estate Agent sent us a Section 21 Eviction Notice 2 months prior to the tenancy expiry date as a precaution

I was wondering if I still have the right to remain in the flat if I refuse to sign any new AST contract? Since Person A has decided to move out and has found someone (C) to replace him, will I still be automatically on a rolling contract if I don’t sign anything?

I haven’t let the estate agent know that I am buying a flat yet as I am trying to buy as much time as possible before they decide to proceed with the eviction process. I am hoping that I will be able to move into my new place by the time they manage to go to court for this.

What would you advise me to do in this situation? The estate agent hasn’t in fact given us a new contract to sign yet and I wonder what will happen if I don’t do anything at all and remain in the flat after the current joint AST contract expires.

Thank you!

Answer

If you remain in the property after the fixed term ends (ie if the landlord does not get vacant possession) then section 5 of the Housing Act 1988 will apply. This says:

Tenants are entitled to remain after the end of the fixed term and that if they do a periodic tenancy will arise. This is created by s5 of the Housing Act 1988 (which is why it is called a ‘statutory periodic tenancy).

• It will start as soon as the fixed term ends
• It will be between the same parties
• It will be for the same premises
• The ‘periods’ will be the same as those for which rent was last paid
• The terms and conditions of the preceding tenancy agreement will apply (other than clauses about ending the tenancy)

The only time where this will not happen is if your tenancy provides for a ‘contractual’ periodic tenancy – you need to check your tenancy agreement to find out if it does.

What section 5 means is that after the end of your tenancy:

• There will be a monthly periodic tenancy (assuming you pay rent monthly)
• It will be between your landlord and yourself along with A and B
• C cannot become a tenant, even if B moves out and C moves in, as C has not signed a tenancy agreement with the landlord. If C moves in he will probably be an unauthorised lodger and technically B will still be liable for rent
• If you have a contractual periodic tenancy it will work in a similar way

This can continue indefinitely until either all the tenants move out (giving the landlord vacant possession) or the landlord obtains a court order for possession and you are evicted by the Bailiffs or High Court Enforcement Officers.

This would probably take the landlord around three to six months (assuming they have complied with all the s21 prerequisites and so are in a position to serve a valid notice). So you should be out by then.

No new tenancy agreement can be signed without your agreement while the periodic tenancy continues.

However, you will be jointly and severally liable for ALL the rent – so if, for example, the other tenants move out and you remain on your own – the landlord will expect you to pay all the rent, not just ‘your’ portion. The other tenants will also technically be liable but they will have gone.

What you could do

1 Stay in the property until you know that your sale is going through.

2. Serve a ‘tenants Notice to Quit’ on your landlord giving him not less than one ‘period’ notice.

Strictly speaking, your notice period should expire on the last day of the next full period. So if the period runs from the 15th day of the month to the 14th – your notice should end on the next 14th day after one month after the date you serve the notice (NB we have an advice guide for tenants on this here).

Assuming you have moved out by the date given in the notice, that will end your liability under the tenancy. Indeed it will end the tenancy itself (a Notice to Quit served by one of joint tenants during a periodic tenancy ends the tenancy for everyone) and the remaining occupiers will need to reach a new agreement with the landlord – but that will not be your concern. You will have left.

Be careful though about remaining in the property after the expiry of your notice to quit as there is a very ancient law that says the landlord can claim double rent from you.