Here is a question to the Blog Clinic from Craig who is a tenant
Can I leave a fixed term tenancy on the end date without having to give two months notice that the landlord had put in the contract?
Under the Consumer Rights Act 2015
Answer
Yes.
Contrary to what many people think, landlords and agents can’t put what they like in tenancy agreements. Or rather if they do, some clauses may be void.
This is down to the unfair terms rules.
The Unfair Terms Regulations
These actually stem from Europe but they will remain after Brexit as they are now part of the Consumer Rights Act 2015, as Craig rightly says.
When a consumer enters into a contract with a business (or ‘trader’) where there are written terms and conditions, the consumer is (or would be without these regulations) at a disadvantage. The traders’ terms and conditions will have been drafted up by lawyers. The consumer will be unable to change these and often will not even read them.
So statute has stepped in to protect the consumer and provides that any clause which takes away a right a consumer would normally have, will be void and unenforceable. Unless the clause has been specifically negotiated with the consumer (and the trader may need to prove this).
The regulations can be enforced by the CMA (although rarely is) and Judges are under an obligation to consider the unfair terms rules where relevant in court proceedings, even if the parties have not asked them to.
Unfair Tenancy Agreement Terms
It is established that these regulations will apply to tenancies. Landlords are treated as being traders for this purpose (its different under the tax regime).
So this means that, if you are a tenant, some of the clauses in your tenancy agreement may not be enforceable. Particularly if the agreement appears to have been drawn up by the landlords or agents themselves. Printed forms from legal stationers will have been drafted by property experts so are more likely to be fully enforceable.
This is all a bit confusing as its hard to know which clauses a judge will find unfair if you don’t know much about landlord and tenant law. I wrote about this here.
The end of the fixed term
When a tenant signs a tenancy agreement for a fixed term, that is all that they have agreed to. The landlord cannot artificially extend it by requiring them to give notice or make them pay ‘rent in lieu of notice’ if they leave without telling the landlord.
A tenancy agreement will always end at the end of the fixed term (by what the lawyers call ‘effluxion of time’). The landlord can’t change this. If the tenant leaves by that date – that’s it. He can’t be held liable for future rent or be penalised for leaving. Because the fixed term is all he signed up for.
Things are different if the tenant stays on. Under s5 of the Housing Act 1988, a new ‘periodic tenancy‘ will be created. But this is ONLY if the tenant is still in the property after midnight on the last day of the fixed term.
From the landlords’ point of view
Landlords and agents get very upset about this saying that they need to know when tenants are leaving so they can make proper arrangements and re-advertise the property so as to avoid a void.
I have a clause in my tenancy agreement which requires tenants to tell the landlord if they are going to stay or leave – but it is not a notice clause and landlords often misunderstand this.
Conclusion
You are right Craig, your landlord cannot require you to give two months notice and cannot penalise you if you don’t.
However, as a common courtesy, I would suggest that tenants do let their landlords know. Even though, strictly speaking, they don’t have to.
Also if your landlord has a clause like mine, and suffers financial loss due to your failure to notify him. he may have a claim against you.
Do you have to give notice once the tenancy is periodic?
Yes, you need to give notice then – normally this will be for one ‘period’ of the tenancy ending on the last day of the period. So if the period runs from the 4th day in the month to the 3rd, you will need to end your notice period on the next 3rd day of the month after one month from the date you serve your notice.
I have an Advice Guide you can buy on tenants notices to quit here: https://tenant-law.co.uk/advice-guides/
“Also if your landlord has a clause like mine, and suffers financial loss due to your failure to notify him. he may have a claim against you.”
It’s hard to imagine a loss that the landlord could experience that would not have arisen has the tenant given the notification. A longer void period is almost impossible to quantify and prove, and that’s the only likely difference.
Probably true, I was thinking of things such as higher costs for checkout meetings if they have to be done at short notice, that sort of thing.
Also, it serves to remind the tenant (if they look at the tenancy agreement) that they need to let the landlords know what they intend to do.
Craig should check his tenancy agreement is not a Contractual Periodic Tenancy with an initial fixed term otherwise the 2 months notice requirement would be valid
Tenats leaving without notice used to be a concern of mine so I followed with interest the link to your article about the notification clause in your contract. I was surprised to see that I’d commented on it back in 2010 – time flies!
At the time I suggested a 3yr fixed term with a break clause at 12 months and you felt that it would put tenants off – a fair concern. Anyway, I gave it a go with a break clause allowing either party to give two months’ notice not expiring within the first 12 months and including modest pre-agreed annual rent increases.
Rather than be treated with suspicion, tenants seem to have really appreciated it – in particular the fixed increases. Whilst this has benefited me because I rarely used to put rent up mid tenancy, tenants have really liked the certainty that they are not going to get unexpected large increases. Win, win.
I have probably used 40 such contracts since then. It also sets the expectation that it is going to be a longer tenancy – several have remained long enough to go periodic. None have left at the end of the fixed term; and if they did would not be a big deal because they have been there 3 years.
The unfair terms law did not stem originally from the EU. Tthe EU did not even exist when the first law was brought in (1977).
The EU later took over that area of law and in 1999 the EU’s version was implemented in UK law, wider in some areas, narrower in others.