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
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.
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.