Here is a question to the blog clinic from Sarah (not her real name) who is a tenant
My AST ended yesterday and the estate agent is trying to get another two weeks of rent from me.
At first, I was told that I hadn’t given enough notice so I had to pay an extra months rent (but as a favour, they would try and talk the landlord down to two weeks). I was pretty shocked by this as I had already told them two months ago I wouldn’t be renewing my tenancy and they waited until last week to arrange an inspection and asking me to come in to sign for another year’s contract.
I disagreed with this and was asked when I would be handing the keys in, I said this morning would be most convenient and they agreed, saying that they would do the checking out at the same time and it could be wrapped up. They now have the keys but want to do the check out in two days time.
I’m now being told that I was right that I didn’t owe notice because of the AST being up but now because I didn’t hand the keys in yesterday (which was the last day of my fixed term) I’m on a periodic contract automatically so still owe rent even though the place is empty, clean and I have no access.
Answer
It sounds to me as if these agents are trying it on.
It is true that if you remain living in a property after a fixed term has ended a new periodic tenancy will start automatically and you will become liable for rent. However, that is not the case here. You had actually moved out and were just a day late in handing back the keys.
I would though, advise any tenants reading this to take care to hand the keys back before the end of the fixed term, to avoid any possibility of this situation ever arising.
Because although I don’t think a new periodic tenancy did arise in your case (because you had given notice and had actually moved out) – as you were actually late (technically) in handing back the keys, I cannot absolutely guarantee that a difficult Judge (were this to go to Court) might not find otherwise.
In your case, I suggest you continue to refuse to pay and say that if they persist you will complain to their Property Redress Scheme.
If the tenant gave notice to the agent that she did not intend to stay beyond the fixed date, surely the onus is on the agent to arrange the check-out and return of the keys? If the agent failed to turn-up for the check-out they have presumably failed in their duty to the landlord! Unless there are other extenuating circumstances I would think the agent could be in an embarrassing position if they attempted to pursue the tenant?
If the agent agreed to handing the keys back the day after the tenancy ended and that was done, then it seems to me that they have no claim for additional money,
Much of the drafting of the Housing Act 1988 is, to be generous, opaque, but one thing it is clear on is that for a statutory periodic tenancy (SPT) to arise the tenant (or if more then one at least one of them) must be in possession when the fixed term ends. If the tenant(s) vacate(s) before the fixed term expires no way can an SPT arise and whether the tenant keeps the keys is totally irrelevant.
Requiring a tenant to give notice that he intends to vacate at the end of the fixed term is pretty pointless as the notice has no effect. If the tenant stays on then an SPT arises simply because statute says it does. Failure to give the notice may be a breach of contract, but the problem is that the obligation cannot arise until the tenant forms the intention and he may not form the intention until just before the tenancy ends.