Termination and last month rent

argo · 18th October 2007, 22:42

Assured Shorthold Tenancy Agreement
Termination clause reads:
This Agreement may be terminated by either party, the Landlord to give at least two months notice in writing and the tenants to give at least one month's written notice, to expire at any time.

I am the tenant and gave a one month notice to expire before the end of tenancy month.
How can I make sure I won't have to pay for the days between expiration date and end of tenancy month? What are the possible implications of changing the amount in standing order for the next payment?

The rent is payable monthly in advance. Relationships with the landlord are pretty tense unfortunately.

Thanks for your comments/ideas.

MrShed · 18th October 2007, 23:41

Have you not given a full rent month notice?

Either way, I would probably do as you suggest and change the standing order. Usually, I would say you are liable for those days anyway, as you normally need to give notice to expire at the end of a rental period("tenancy month"). However, the wording of that clause strongly implies there is no requirement to do this.

argo · 18th October 2007, 23:51

I have given a month notice in the middle of a rental period to expire in the middle of the next rental period. I did this because the contract allows it. Therefore I don't think I am liable for those days.

MrShed · 18th October 2007, 23:58

As I say, I agree

Ed999 · 19th October 2007, 18:08

The parties can end the tenancy by agreement, amounting in effect (if it is a fixed term tenancy) to a surrender, if there is genuine agreement. But where the tenant has given notice to end the tenancy, this implies that there is no such agreement.

The parties cannot contract-out of any statutory requirements. If the tenancy agreement purports to do so, that part of it is ineffective.

If the tenancy is a fixed term, the tenant can exercise the "break" clause he has mentioned, to end the fixed period early, provided he complies with the contractual requirements, if any. But we here cannot tell what those requirements might be, since we have not seen the entire agreement.

If the tenancy is a periodic tenancy (with no initial fixed term, or the fixed term has ended), then the common law requires the tenant to give at least one full rental period's notice, expiring on the day before a rent day.

It is unclear whether the parties can contract out of this requirement. It might be prudent, therefore, to give that common law notice, in writing.

As this is not an ordinary situation, the tenant should take legal advice from a solicitor, who can consider the legal effect of the tenancy agreement as a whole, in the light of the tenant's copy of the written notice he has given, and advise him as to his legal position.

The tenant should also read this thread for additional information: http://www.consumeractiongroup.co.uk...-eviction.html

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

MrShed · 20th October 2007, 00:33

Quote:

Originally Posted by Ed999

It is unclear whether the parties can contract out of this requirement. It might be prudent, therefore, to give that common law notice, in writing.

I dont think there is anything unclear - it doesnt infringe on anyones statutory rights, so fairly straighforward to contract out of it.

Nightmare4banks · 20th October 2007, 01:03

I would just like to state that I totally agree with Mr.Shed here.

Ed999 · 20th October 2007, 19:09

Quote:

Originally Posted by MrShed

I dont think there is anything unclear - it doesnt infringe on anyones statutory rights, so fairly straighforward to contract out of it.

You can't contract out of the law, so it might be prudent therefore to give the necessary common law notice.

As this is not an ordinary situation, the tenant should take legal advice from a solicitor, who can consider the legal effect of the tenancy agreement as a whole, in the light of the notice the tenant has given.

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

MrShed · 20th October 2007, 19:10

In what way is this attempting to contract out of the law?

Ed999 · 24th October 2007, 19:50

Quote:

Originally Posted by MrShed

In what way is this attempting to contract out of the law?

The tenancy agreement is attempting to agree the rules for the giving of a notice by the tenant to terminate the tenancy.

Since the rules in question are laid down by law (mentioned here: http://www.consumeractiongroup.co.uk...-eviction.html), the tenancy agreement is attempting to contract-out of the law.

This is probably not possible. The common law rule is that the tenant must give one rental period's notice, expiring on the day before a rent day, subject to the statutory minimum period of 28 days notice.

Although anything is possible on a surrender, where - as here - there is instead a termination by notice, the common law rules (as modified by statute) as to the period of notice required must be complied with.

Accordingly, in my opinion it is possible that the Court might decide that the o/p has failed to give the correct notice to terminate the tenancy, and that it was thus not terminated by the notice which he gave.

The prudent course of action is always for the tenant to comply with the common law rules and give the correct period of notice.

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

MrShed · 24th October 2007, 20:00

I disagree, of course, but will agree to disagree

Joa · 25th October 2007, 01:19

It seems like this is a standard "early break" clause. OP has given required notice. Bish bosh, the tenancy is no more (upon expiry of the notice)

Aequitas · 25th October 2007, 01:29

Surely express agreement overrides the common law here.

Woodfall, Aldridge or Hill & Redmond must have something to say on the matter. Anyone got access to any of them to have a look?

Joa · 25th October 2007, 01:41

From Shelter: Many fixed term agreements contain a 'break clause', which allows you to end the agreement before the fixed term runs out.

Ed999 · 26th October 2007, 22:44

In theory, Joa. But we don't know what the terms of this tenancy are.

The tenant cannot end a fixed term tenancy during the fixed term, unless:

1. The tenancy agreement contains a "break clause", i.e. a provision expressly authorising the tenant to give notice ending the tenancy during that fixed term (typically the fixed term will be six months); or

2. By a surrender of the tenancy, with the landlord's agreement.

A fixed term tenancy can't be terminated early by the tenant unless the agreement allows this or the landlord agrees. If the tenancy does not allow this and the landlord does not agree to an early termination, the tenant will remain bound by the agreement and liable for the rent for the whole period.

If the tenant wrongfully leaves early, the landlord can sue for the rent due for the remainder of the fixed period. In that case the landlord does NOT have to mitigate his loss by re-letting the premises.

I request that Argo, the original poster, clarifies the facts of this situation, by posting here the additional information specified in this thread: http://www.consumeractiongroup.co.uk...w-posters.html

MrShed · 26th October 2007, 23:40

- The agreement clearly DOES have a term to this effect Ed.

- Interested on what basis you state that the landlord does not have to mitigate his losses?

argo · 26th October 2007, 23:59

Quote:

Originally Posted by Ed999

I request that Argo, the original poster, clarifies the facts of this situation, by posting here the additional information specified in this thread: http://www.consumeractiongroup.co.uk...w-posters.html

Thanks to all for the contributions to this thread.
The agreement is in writing. Six month fixed term not expired yet. Rent is payable monthly.
The break clause and notice details are given in my first post.

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