This 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? Thank you in advance.
Answer
The significance of the notice period is not whether or not the landlord can force you to stay in the property – she cannot physically stop you from moving out. The significance is your liability for rent after giving notice.
Or, if you move out without giving notice, how much rent you are liable for in lieu of notice.
If you are able to give two months’ notice, then it is best to do that as it avoids problems. However, if this is not possible and you need to vacate on the date given in your notice, then the landlord can either:
- Accept the situation
- Require you to pay the additional month’s rent – and deduct this from your deposit or
- Say that your notice was defective and that no proper notice was given, meaning that you need to pay two months’ rent in lieu of notice when you vacate. Your deposit will not be sufficient to cover this, but she will start by making a deposit deduction.
So, this will probably boil down to what she deducts from your deposit.
What to do if a deduction is made from your deposit
If you vacate on the date given in your notice and the landlord deducts a further month’s rent from your deposit money (or more), then you should challenge this and ask for the deduction to be referred to adjudication.
All the deposit schemes have a free adjudication service. You can find out more about it on your scheme website. Note that there are time limits so make sure you deal with this promptly.
You will need to object on the basis that the landlord is unfairly claiming an additional month’s notice, more than you would be liable for if the tenancy were a statutory periodic tenancy. Which means that the clause is unfair under Part 2 of the Consumer Rights Act 2015.
It will then be down to the adjudicator and whether they agree with you or not. I suspect that they will agree.
And finally
Note that this post will be redundant after the Renters Rights Bill becomes law, as all tenancies will become statutory periodics.