Here is a question to the blog clinic from Kathy (not her real name), who is a tenant in England.
We’ve signed an AST that rolled into a contractual periodic tenancy (CPT). The notice period is 2 months for the landlord and tenant.
We didn’t realise that it would turn into a CPT and assumed that the legislation applied, that is, that it becomes an automatic statutory periodic tenancy (SPT) on a monthly basis where notice is 1 month.
We’ve been with the landlord for several years and gave 1 months’ notice, but she’s referred us to the clause. Upon reviewing the situation, the notice period for the landlord is 2 months as required by the legislation but double for us as tenants.
Do we have grounds to argue it’s an unfair term and unenforceable?
Answer
Maybe.
Tenants’ notice periods are covered by the ‘common law’ rules and will normally be equivalent to a ‘period’ of the tenancy. So if there is a periodic tenancy which is monthly, the notice period will be one month. But if the ‘period’ is two months or quarterly, then the notice period will be two months or three months.
Or rather, the notice must end at the end of the next ‘period’. So the actual notice period, for a monthly periodic tenancy, will be between one and two months, depending on when in the month it is served. Or, to put it another way, the tenant must give not less than one month’s notice ending at the end of the next period after one month.
Landlords must give two months’ notice if they want to use section 21, which is why the landlord’s notice period in the tenancy agreement is two months.
Tenancy agreements are covered by the unfair terms rules in section 61 onwards of the Consumer Rights Act, and if the notice period is more than what the tenant would have to pay under the general law, the clause is at risk of being found unfair and unenforceable.
So what notice period should you give?
Well, it will depend on the period of your periodic tenancy. So I am afraid you will need to check the clause in your tenancy agreement which set up the contractual periodic tenancy, and see what it says.
If the period is monthly, then it is arguable that you only need to give not less than one month’s notice, and the term in your tenancy will probably be found to be unfair and unenforceable under the unfair terms rules. If the period is two months, though, then a ‘not less than two-month notice period may be reasonable.
There is also the question of payment. Are you paying monthly or every two months? If you are paying monthly, then it is arguable, notwithstanding what it says in your tenancy agreement, that your notice period should be monthly.
Depending on what your tenancy agreement says, it may be open to you to leave after one month and refuse to pay the extra month’s rent required by the two-month notice period. Then if the landlord tries to deduct this from your deposit, refer the matter to adjudication and see what they say.
You could also try to get the issue decided by a judge in the Small Claims court, but this would take a lot longer and be more stressful for you.
I was hoping some knowledgeable folk would have commented by now.
My concern here would be that if you left it up to the deposit scheme adjudicators they might turn round and say the decision to strike out an ‘unfair’ contract clause is outside of their jurisdiction, then you could end up with the missing month’s rent being deducted from the deposit by default in lieu of the full notice.