Here is a question to the blog clinic from Vera who is a tenant.
Hello, I am renting a room in an HMO Property. I have Shorthold Assured Tenancy Agreement, with fixed-term for 6 months. This fixed-term has ended and now I am on a monthly periodic contract because I pay rent monthly. I haven’t got any new agreement with any new fixed term.
I gave notice to my landlord for 1 month, but she told me I have to give 2-month notice because it says in my contract. Unfortunately, I can see in my contract written
“the term hereby granted may be determined by either party at any time not less than six months after the commencement of this agreement or any previous agreement by giving by giving either party two calendar months notice in writing.”
It doesn’t make sense for me, because my “term” was 6 months. But it also says I can’t give any notice less than six months. But it doesn’t say anything about a month to month periodic contract, which is under law 1 month notice.
Am I right, that 1-month notice is fine in this case, or I really have to pay for another 2 months because of the breaking clause in my contract, which in my opinion is unlawful and doesn’t make sense?
Answer
This depends on whether your tenancy is a statutory or a contractual periodic tenancy.
Statutory periodic tenancies
Most periodic tenancies for assured shorthold tenancies are ‘statutory’. Meaning that they exist because a statute says so.
The statute, in this case, is section 5 of the Housing Act 1988. This says:
(d) … the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy; and
(e) … the other terms [ie of the tenancy] are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy.
So if you paid rent monthly you will have a monthly periodic tenancy and the term in your tenancy agreement regarding ending the tenancy will not have effect during the periodic tenancy.
The law regarding tenants notices to quit falls under the common law and requires tenants to give notice of at least one full period ending at the end of the period.
So in your case, your notice cannot be less than one month and will be between one and two months depending on when in the month you serve it.
Contractual periodic tenancies
It is possible for a periodic tenancy to exist, not because of the statute, but because of contract. This is where a tenancy agreement specifically provides for the tenancy to continue after the end of the fixed term on a periodic basis.
In which case, the requirements for notice will depend on what it says in the contract. Although it is arguable that if the notice required under the contract is significantly longer than that under common law, the clause could be deemed ‘unfair’ under the unfair contract terms rules in the Consumer Rights Act 2015.
How do you tell which type of periodic tenancy you have?
Take a look at your tenancy agreement.
If it does not say anything about your tenancy continuing after the end of the fixed term (which most tenancy agreements won’t) your tenancy will be a statutory periodic tenancy.
Bob says
September 2, 2020 at 5:27 PMI’d always just thought with an AST its 2* months for the landlord and 1 for the tenant.
*Though currently 6…?
Tessa Shepperson says
September 2, 2020 at 5:32 PMIn most cases it is. Apart now of course when most notices are 6 months ….
Phillip Williams says
September 3, 2020 at 2:19 PMSaT ?? Think this might be Scottish where the clause would be valid….
John says
September 3, 2020 at 8:37 PMWhy are these Contractual periodic tenancies so complicated?
John says
September 10, 2020 at 12:09 PMIs the following correct :-
Always a minimum two months from the landlord (except now during CoViD)
If it’s an AST that does NOT mention anything beyond the fixed term – then NO notice is required if leaving on or before the “expiry” date of the fixed term, irrespective of what the contract says, then thereafter it’s a minimum one month’s notice ending on a full period.
If the original contract mentions anything about turning into a monthly periodic after the fixed term then it’s a contractual tenancy and the required notice in the contract will apply (typically one month from the tenant or sometimes two months). This would include having to give notice when leaving as the fixed term expires.
John says
September 10, 2020 at 12:25 PMVera seems to have confused the minimum term reference to six months with the minimum notice of one month. Hope that’s now clear.
Vera also mentions a break-clause (not shown).
Am I right in thinking the operation of a break-clause merely converts a fixed term tenancy into a statutory periodic (regardless of whether it was contractual to begin with or not) thereafter requiring the normal notice eg via a S21. Can the break-clause and S21 be combined as one notice or do they have to be two separate sequential events.
An idea for a future blog post – can you highlight this scam that agents are regularly pulling now whereby they routinely issue twelve-month tenancies with NO break-clause, often leading to the tenant having to incur extra fees and costs if they wish to leave early having not really realised they were committing to a full year’s rent payments.
Another common piece of misdirection by agents is three-year fixed terms with a symmetrical break-clause after six months. Surely if the landlord can also operate the break-clause then there is no extra security for the tenant despite what the agent may appear to be promising them?