notice to leave

[The Carpet Cleaners]

Hello

just to confirm things in my own mind (well my wife's mind)

we have a 6 month ast in England from 29th december 2010 to 28th June 2011. (next tuesday)

 

We have just been offered somewhere else to live and told the LL out of courtesy really that we will be handing the keys back on 28th at midday ish.

 

They seem to think that we have to give 30 days notice. I happen to think that we don't.

 

There is a part in the AST will type it as it is in there.

 

 

5.8 if at any time during the term the tenant wishes to terminate the tenancy he may do so by giving not less than one month's notice in writing expiring at a date no earlier than the first six months of the term.

 

5.9 once the initial six month term expeires and the tenancy rolls over to become as periodic assured shorthold tenancy, then the landlord must give two calendar months written notice tht he requires possession...................... etc

 

my point is that the contract ends on 28th I am leaving on 28th therefore no notice is needed.

 

could someone please advice.....

 

Thanks

[padja]

I believe you may have to give months notice regardless of expiry date, as technically you are ending tenancy, but normally they agent/LL will contact you to ask are you staying, a month before the end of tenancy, perhaps a little letter saying you thought that as it was ending you didnt apologise that you may have mis-understood the agreement (even though you may be in right) etc. otherwise the LL can keep any deposit for breaking terms. I may be wrong in this

[Steve__M]

The contract doesn't end on the 28th. The fixed term ends on the 28th.

 

Most people say that you can leave. However, I asked a bunch of lawyers (and non-lawyers) on the following forum, and some of them made good arguments as to why the notice period could be enforced.

 

http://www.swarb.co.uk/phpbb/viewtopic.php?f=20&t=5255

 

The argument got a bit complicated though, as it always does with lawyers.

 

One point they made was that the OFT say such terms would be unfair (and therefore not legal) under the Unfair Terms in Consumer Contracts law. But that may not apply if your landlord is a small-time landlord (ie. meaning your relationship is not a consumer-to-business relationship).

[Snorkerz]

I guess the question is - can your landlord show you anywhere on your contract where you have agreed to be in the property beyond the 28th?

 

I have to disagree with Steve_M, the contract does end on the 28th, because a lease must have an end date, it can not be indefinate (that is the reason for 999 year leases - no one expects the property to still be standing then, so it is indefinate without falling foul of the law).

 

Anyhow, if the landlord says you need to give 30 days notice - show him the agreement you signed at the end of December which says it is up to the 28th - ask him if 6 months notice isn't enough.

 

=====================

 

It is true that the tenant has a legal right to stay beyond 28th - but they have neither a legal nor contractual obligation to do so.

 

=====================

 

And just to pick up a point (which does my argument no good at all) "One point they made was that the OFT say such terms would be unfair (and therefore not legal)". The OFTs decisions have no standing in law whatsoever - just because the OFT say something does not make it unlawful. Their decisions are often ratified in the courts eventually, because they tend to make good sense - but take the issue of 'bank charges' - the OFT thought 'bad', the courts disagreed.

[Steve__M]

Carpetcleaner,

 

Re-reading the clause I think in this case the clause is specifically written as a break clause for contracts of longer than 6 months as it is about ending the tenancy *during* the fixed term whereas the you want it to end it at the *end* of the term.

 

So the term is superfluous in this contract as "no earlier than the first six months of the term" is the whole fixed term!

 

snorkerz,

 

I was only making a semantic point regarding the end of the contract - in absence of LL notice the contract ends when the tenant moves out after giving any required notice.

 

I guess the question is - can your landlord show you anywhere on your contract where you have agreed to be in the property beyond the 28th?

 

Assuming a more strictly worded clause that requires notice at all times, I came to this conclusion on the swarb thread. Nothing in the contract says the tenant agrees to stay beyond the fixed term. However the tenant *has* agreed to give notice *if* he plans to leave. If he fails to give notice the LL may lose money because he cannot relet the property quickly. Unfortunately noone understood my point - or my point is too stupid to understand by sane people !

[Snorkerz]

Steve_M, I don't want to appear sycophantic, but I am sure your last comment is totally untrue. I may not always agree with your posts - but they are always clearly explained, which is just what posters need.

[Ed999]

My comments apply only if the premises are entirely within England and Wales, and only if you were granted a shorthold tenancy (under which you - and your spouse/partner/children, if any - had exclusive use of a seperate dwelling, which was not shared with another tenant nor with the landlord), and only if you were over 18 years of age when the tenancy was granted.

 

This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation.

 

 

Fixed Term: Ending the Tenancy

 

If you agree a fixed term, the tenancy lasts until the final day of the fixed term (the agreed end date). The tenant is liable for the rent due until that date.

 

The tenancy ends automatically when the fixed term ends. No notice is required of the tenant (no notice at all), provided he moves out - and returns all the keys - by the final day of the fixed term (the agreed end date).

 

 

If the tenant remains in occupation after the end of the fixed term, a periodic tenancy arises [section 5(2)].

 

 

Fixed Term: Contract seeks to impose Notice requirement

 

This is a clause added by a landlord who has come across the problems that a fixed term tenancy causes for landlords, on a previous letting. This is his attempt to solve the problem.

 

The problem this clause addresses is that at law a tenant does not have to give any notice, but can just move out without notice, on or before the final day of the fixed term.

 

But is this clause effective?

 

In my opinion, the clause might be ineffective, but the position is not free from doubt. The common law says that a tenancy expires when the fixed term expires: this clause attempts to avoid that legal consequence. However, it is not open to the parties to a contract to re-write the law of the land. You cannot enter into a private agreement that the public law shall not apply.

 

A court might not agree. The risk is that a court might decide that because the Housing Act 1988 does not specify any notice period in respect of a notice given by a tenant, the notice period is therefore of a contractual nature, so the period of notice agreed in the tenancy agreement will apply.

 

You should probably notify the landlord - at once - of what you will be doing, and why, so the landlord is put on notice to start re-marketing the property. A prudent tenant will give that information to the landlord or letting agent in writing, and hand deliver the letter.

 

And in that letter it would also be prudent to say something to the effect of: If, but only if, the foregoing is incorrect, this letter is my notice to you terminating the tenancy on the first date after the date of this letter on which I can lawfully terminate it by notice.

 

If you have previously paid a rent deposit, the landlord will likely try to claim against it, in respect of the rent due for the first month after the fixed term ends.

[The Carpet Cleaners]

You are quite right Ed.....

the landlord is now trying to withold the deposit (it is with the DPS)

 

So it is looking as though if she will not agree to the free dispute service I am going to have to sue her for the return.

 

Is there a specific section in the housing act that says the inclusion of a clause cannot overwright the act, and is there a specific part of the housing act that says I can just leave on the final day of the contract. We have a signed document saying the keys were handed back to the landlords mother in law in a clean and tidy state on the final day. There was no inventory on moving in or out however we have lots of photo's of the place on leaving.

 

Cheers

[Steve__M]

I don't think there is any law that says such terms cannot be used.

 

The OFT produced a document that said they would consider such terms as potentially unfair. I suspect that if there were a law against the term then the OFT would have said so.

 

What are DPS doing? Will they hold the money till the dispute is resolved?

[The Carpet Cleaners]

yes..... unless the landlord does not wish to use the dispute service, then I have to sue and the DPS make the deposit available to whomever the court decides.

[Ed999]

the landlord is now trying to withold the deposit (it is with the DPS)

 

 

If the tenancy has ended: you CAN sue for the return of your original deposit; but you CANNOT sue for the statutory penalty of three times the amount of the deposit - except, perhaps, if your claim is made under section 213(5) of the 2004 Act.

 

The outcome is uncertain. It is not clear whether a claim under section 213(5) can succeed after the tenancy ends; nor is it certain whether a landlord can comply with section 213(5) more than 14 days after the deposit was paid; and it's likely that a landlord, faced with a claim for repayment of the original deposit, will allege disrepair by the tenant in order to try to persuade the court to let him keep it.

 

 

If you paid a deposit, read the FAQs about the tenancy deposit scheme, under which you might be entitled to sue for compensation if the deposit has not been protected, under the Housing Act 2004, if you were granted a shorthold tenancy:

 

• Tenancy Deposit Scheme

 

• Tenancy Deposit Protection - First High Court Decision

 

• TDS eligibility, implication of breach and legal questions answered

 

 

The Court of Appeal has decided, in Gladehurst Properties Ltd v Hashemi (19th May 2011), a case in which the tenancy deposit was never protected by the landlord, that section 214 of the Act only makes sense if both options contained in it (i.e. return of the deposit or its protection in a TDS scheme) are available to the Court. The Court said this can only be the case if the tenancy is still in existence, so the penalties for non-protection of the deposit are NOT available to the tenant after the tenancy has come to an end [see paragraph 37 and 42 in the Judgement]. The tenant therefore CANNOT succeed in a section 213(3) claim once the tenancy is over.

 

If you sue AFTER the tenancy, if the deposit hasn't been protected - to have any chance - you need to claim a breach of section 213(5) [provision of prescribed information], not 213(3). If you claim under section 213(3) only you are likely to lose, just as the tenant lost in Potts and in Gladehurst.

 

If you claim under section 213(5), you are likely to LOSE that part of the case in the County Court, because of Gladehurst. Don't even consider making such a claim unless you are willing to go all the way to the Court of Appeal - which will be very expensive if you lose.

 

 

None of the foregoing prevents the tenant succeeding in a claim for the return of the original deposit (a claim which can only succeed AFTER the tenancy ends, because that deposit is security for non-payment of the rent and for damage during the tenancy).

 

 

So it is looking as though if she will not agree to the free dispute service I am going to have to sue her for the return.

 

 

They have issued a guide, explaining the disputes procedure they provide:

 

• A Guide to Tenancy Deposit disputes and damages

 

Where a deposit is protected by being placed in the TDS scheme, if a dispute arises at the end of the tenancy the parties can choose to resolve it by this procedure instead of going to court (but must begin the procedure within a time limit).

 

Both the landlord and the tenant must agree to use the DPS disputes procedure. It cannot be initiated by only one of them. But it can be MUCH cheaper than a court case.

 

 

Is there a specific section in the housing act that says the inclusion of a clause cannot overwright the act

 

 

No.

 

The law is the law though. The parties to a contract can't simply agree that the law won't apply to them. If this dispute goes to court, the court will decide the outcome by applying the laws of the land.

 

 

is there a specific part of the housing act that says I can just leave on the final day of the contract.

 

 

No.

 

The law of landlord and tenant goes back hundreds of years. It is not found in the Housing Act. That Act deals only with modification of the underlying law, and seeks merely to overcome certain difficulties created in the lettings market by the Rent Act 1977. The Housing Act cannot be understood without an understanding of the pre-existing tenancy laws.

 

It has nothing to say about a notice given by a tenant, called at common law a 'notice to quit'. But in fact no notice is necessary: a fixed term simply expires on the agreed end date. The contract ends on the date it was agreed to end on.

 

 

We have a signed document saying the keys were handed back to the landlords mother in law in a clean and tidy state on the final day. There was no inventory on moving in or out however we have lots of photo's of the place on leaving.

 

 

The tenant has a duty to treat the property in a 'tenant-like manner'. This is defined by the Court of Appeal in the leading case of Warren v Keen [1953] 2 All ER 1118, CA.

 

Basically, the tenant must take proper care of the premises, and must repair damage to the premises caused, wilfully or negligently, by him, his family, or his guests.

 

But if the house falls out of repair owing to fair wear and tear, lapse of time, or any reason not caused by him, then the tenant will not be liable to repair it.

 

 

If the landlord alleges damage, he must prove it.

 

If there is no check-in inventory, the landlord really doesn't have a leg to stand on; so the tenant is in a stronger position where there is no check-in inventory.

 

The landlord is not allowed to improve the premises through 'betterment' (replacing an old or worn item with a new one). Likewise, the tenant is not liable for the cost of cleaning or repairing an item which was already soiled or damaged before the tenancy began.

 

 

Also read this document - Fair Wear and Tear

 

It explains some aspects of the law regarding fair wear and tear, applying the principle that a tenant is NOT liable to pay for the cost of remedying ordinary wear and tear.

 

Where the landlord claims for cleaning, be alert to the possibility that the cleaning may be necessitated by fair wear and tear. If so, the tenant is not responsible for the cost.

 

 

Also, the landlord can't ask the tenant to pay (i.e. out of the deposit) for the cost of repairs which the law requires the landlord to do. What those repairs are is explained in this FAQ -

 

• Disrepairs in privately rented accommodation

 

A detailed analysis of the landlord's repairing obligations, prepared by a Barrister in 2010, is set out at -

 

• Interpreting Repairing Covenants

 

 

Any deposit paid at the beginning of the tenancy belongs to the tenant. So the burden is on the landlord to prove that any deduction from it is justified.

 

Read the FAQ about what deductions the landlord can lawfully make from the deposit -

 

• Unfair deposit deductions

Edited July 16, 2011 by Ed999

[The Carpet Cleaners]

Thank you Ed, I know that the 3 times was a no go as the deposit is protected. However to sum up.

 

The Tenancy was fixed term 29th December 2010 to 28th June 2011.

 

I moved out and handed back the keys to the landlords mother in law (my next door neighbour) at 1145 on 28th June and have signed form stating such.

 

There is no claim on the deposit for disrepair etc as the place was cleaner and improved when I left than when I arrived and there was no inventory.

 

Landlord now not agreeing to release the deposit (which is with DPS) claiming it is for rent due as no notice to leave was given relying on the clause mentioned in the first post.

 

I may have to take her to court and should win based on common law.

 

Is there anything else that I can sue her for at the same time, as due to her keeping MY deposit I have suffered hardship whilst moving into my new property etc.

 

Once again thank your for all the help so far.

[MrShed]

Just to clarify, my thoughts.

 

- A contract absolutely cannot override the statutory rights of the tenant. The tenant had absolute right to leave at the end of the fixed term with no rent due and no notice required. Steven - you have surprised me by thinking anything other

 

- What does your tenancy state re: timescales for the deposit being returned following completion of the tenancy? You can sue for the deposit, plus interest, from this date. If you have suffered any ACTUAL FINANCIAL LOSS as a DIRECT result of the deposit not being returned by this date, you can sue for this too.

[Steve__M]

A contract absolutely cannot override the statutory rights of the tenant. The tenant had absolute right to leave at the end of the fixed term with no rent due and no notice required. Steven - you have surprised me by thinking anything other

 

I don't know what to think! While the tenancy may come to an end and there may be no "rent" due, it may be possible to place a contractual duty on tenant to serve notice of intention to leave (in the same way as the tenant has a contractual duty to cut the lawn and clean the windows).

 

I don't think it applies in this case though as the clause is a break clause.

[Ed999]

The Tenancy was fixed term 29th December 2010 to 28th June 2011.

 

I moved out and handed back the keys to the landlords mother in law (my next door neighbour) at 1145 on 28th June and have signed form stating such.

 

Landlord now not agreeing to release the deposit (which is with DPS) claiming it is for rent due as no notice to leave was given relying on the clause mentioned in the first post.

 

 

I summarised in this post the legal possibilities with regard to the contract clause in question - which purports to impose a requirement on the tenant to terminate a fixed term, despite the fact that in law the term expires automatically by effluction of time.

 

The clause seems to me to be perverse, as it implies that the fixed term cannot expire by effluction of time: an obvious absurdity, when the law says it does so expire.

 

But, as ever, the outcome of a court case is never certain.

 

 

I, too, would see the matter differently if the clause was a break clause: one giving the tenant a right to end the fixed term early.

 

This clause, on a close reading of it, doesn't permit the fixed term of 6 months to be ended early, which is why - in my opinion - it is not a break clause, even though it's dressed up to look as though that's what it is.

 

The point of interest in this clause is that this tenancy is a fixed term of 6 months, and the clause provides for the tenant to give a notice that cannot take effect during the first 6 months. Thus the clause provides no early release from the fixed term.

 

Looked at another way, it might be clearer to you. If the clause had said the tenant may given a notice that cannot take effect in the first 5 months, if the tenant gave no notice the tenancy's fixed term would still end after 6 months, i.e. on the agreed end date. The same applies in our actual case, IMHO, in that if the tenant gives no break notice the fixed term still ends on the agreed end date.

Edited July 20, 2011 by Ed999

[Ed999]

Is there anything else that I can sue her for at the same time, as due to her keeping MY deposit I have suffered hardship whilst moving into my new property etc.

 

 

I'm not aware of any successful claim for damages in the case reports, only accounts of tenants recovering their original deposit and - in a few cases - the penalty for not protecting that deposit.

 

You should consult a Solicitor if you wish to make a claim for damages.

 

In my opinion, a claim for damages in your circumstances is most likely too remote: nothing strikes me as entitling you to believe that you had put the landlord on notice, before the tenancy began, of any special loss you might suffer, beyond simple loss of interest, in consequence of a brief delay in the return of your deposit.

[MrShed]

Ed, I'm not sure thats entirely applicable. Deposit return (other than where covered by TDS) is in the main one of common contract law. If the landlord has refused to return the deposit within the timescale laid out by the contract, he is in breach of contract. As such, the injured party would be entitled to actual financial loss directly due to the breach. It may be difficult to prove though.

[Ed999]

In my opinion, the financial loss which flows directly from the breach of contract is the loss of the interest which the money owed could have earned for the tenant, if he had been able to invest it on deposit or in a savings product.

 

Hence, as I suggested, his loss is rectified by an award of interest on the sum claimed.

 

I can't think of any other example of direct loss, if the only legal issue is payment of a sum of money.

[The Carpet Cleaners]

Thanks guys, at this moment the estate agent has lost his temper and thrown his teddy bear out of his pram.

Aparently he was not paid to put the deposit in the DPS and did it as a favour to the landlord. He is now saying that he has nothing more to do with it.

Landlord is now trying to claim all the deposit on the clause stated above, so I (due to the influence of my wife) have agreed to the ADR (dispute resolution service) I would prefer to go to court as the agent is saying that he has nothing whatsoever to do with this, although his estate agents is named as the agent/landlord on the DPS paperwork. I would take both the landlord and the agent to court so that there could be no side swerving by one or the other.

 

So as we speak we are waiting to see if the landlord will accept the dispute service or I have to take her to court.

[The Carpet Cleaners]

They are both totally ignoring any payment requests from the DPS now.

 

Looks like Court is the only way.

 

On the letter from the DPS it only has the estate agent as the agent/landlord so as I know the landlords address do I still just take her to court, or am I right in thinking that the estate agents have to be taken as well, because they are the only ones named on the DPS paperwork?

[The Carpet Cleaners]

anyone please ?

[Aequitas]

They are both totally ignoring any payment requests from the DPS now.

 

Looks like Court is the only way.

 

On the letter from the DPS it only has the estate agent as the agent/landlord so as I know the landlords address do I still just take her to court, or am I right in thinking that the estate agents have to be taken as well, because they are the only ones named on the DPS paperwork?

 

Suggest you pose the question here: http://www.swarb.co.uk/phpbb/viewforum.php?f=8

[The Carpet Cleaners]

Thank you for your advice, the following was posted on there, and swayed all the doubters that I was legally entitled to leave on the final day of the fixed term tenancy.

 

I have now issued a claim to the LL only as the agent is (unfortunately) just that and agent and only works on the authority of the LL.

 

 

 

 

 

A tenancy can be granted to take effect as:

 

1. A fixed term

 

2. Periodic from the start

 

3. A fixed term followed by a periodic tenancy

 

"Fixed term" means what it says. A fixed term does not extend beyond its last day. No notice is required to bring it to an end because it will end anyway. If there is a contractual provision requiring the tenant to give notice to bring the fixed term to an end any failure to give it cannot stop the fixed term expiring. If you argue that it does you are arguing that a fixed term of indefinite duration was granted and that is a contradiction in terms; any attempt to create a tenancy on that basis would not create a tenancy at all because when a tenancy is granted its maximum duration must be ascertainable.

 

A periodic tenancy, whilst indefinite, complies with the rule that the maximum duration must be ascertainable when granted because at its start it is treated as being for a fixed period; if no notice is given the tenancy continues for another fixed period. Absent any agreement to the contrary and subject to section 5 of the Protection from Eviction Act 1977, the period of notice required to bring a periodic tenancy tenancy to an end is the same as the period of the tenancy (unless yearly).

 

A fixed term followed by a periodic tenancy will be granted if the agreement says something like: "for a term of one year and thereafter from month to month" or "for a term of one year and then continuing as a monthly periodic tenancy". That creates a single tenancy and the tenant cannot up and leave before the fixed term expires without giving notice. Unfortunately, incompetent drafting may lead to doubt as to whether the intention was to create a fixed term followed by a periodic tenancy.

 

Neither of the two clauses quoted above suggests that the tenancy was for a fixed term followed by a periodic tenancy. Clause 5.8 is clearly phrased in terms of a break clause - and a pretty useless one since it gives the right to break at the end of the fixed term; it does not impose any requirement to give notice. Clause 5.9 provides for what happens after (a) the fixed term ends and (b) the tenancy becomes periodic. If there is nothing else in the agreement that indicates the tenancy was for a fixed term followed by a periodic tenancy, then if the tenant vacated on the last day of the fixed term no periodic tenancy of any kind will have arisen. A contractual periodic tenancy can only arise if agreed and a statutory periodic tenancy can only arise if the statutory conditions are fulfilled one of which is that the tenant is in occupation when the fixed term comes to an end.

[The Carpet Cleaners]

The same poster continues with:

 

The point is that:

 

Clause 5.8 does not impose any obligation to give a notice.

 

Clause 5.9 is expressed to state what happens when the fixed term ends and can therefore have no bearing on anything required before it ends.

[The Carpet Cleaners]

Well today we go to court. The whole defence by my ex landlord is the clause first mentioned.

the original deposit was only £450 but now with the £90 fees for the small claims court, loss of earnings for today £50 and travel claim, I wonder if it was all worth it.

 

I will let you know the outcome later.