Fixed Term Tenancy LL saying not given enough notice.

[_Mark_]

Hello,

 

I am moving out of a flat on the 14th November and am I currently on a 6 month fixed term tenancy. I phoned the LL on the 16th october just to let them know we would not be renewing the contract this time they did ask to do this in writing but this was not done as we received a letter from the LL accepting we would not be renewing. Two days ago they put a note in the letter box

 

Following a telephone conversation regarding ending your contract with us, please be aware we have received no written notice. Therefore you will be liable for rental payments covering your 30 days notice period even if you vacate.

 

This is an email conversation after receiving the message.

 

Hi,

 

I have received a note from you yesterday trying to say we have not given you 30 days notice to vacate apartment. I think you are getting a little confused as I am on a fixed term tenancy and not a periodic tenancy. NO notice need to be given to end a fixed term tenancy (as this is what fixed term means). I did phone you to let you know I was leaving as a gesture of good will. I have also got a letter from yourself accepting that I will be leaving. As I told you on the phone I will be leaving on or before the 14th on November.

 

If you need more info on this maybe I can point you to what the OFT has to say about notice periods on Fixed term Tenancy Agreements please see bellow.

 

Susan

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284440/oft356.pdf

 

Notice not required for fixed term agreements

3.78 A tenant is not required to give notice to bring the tenancy to an end at the

end of the fixed term. That is because a fixed term agreement comes to an

end at the end of the fixed term, and no periodic tenancy will arise if the

tenant then leaves. We appreciate that landlords will want to ensure that

their properties are not left empty between tenancies, but object to terms that

impose a contractual obligation on the tenant to give notice in order for the

tenancy to be terminated at the end of the fixed term. This could allow the

landlord to impose a substantial financial penalty on tenants who do not

realise that notice is not required, by requiring them to pay rent for a period

after the end of the fixed term. Terms such as this are not necessary to

protect landlords from the possibility that their property will be left empty, as

the law allows landlords to recover possession at the end of the fixed term

by serving at least two months' notice, and they could do so where their

current tenant fails to indicate when asked whether they intend to stay on.

The landlord and tenant could of course still agree to a renewal of the

tenancy even after such notice was served.

 

Their reply.

Can I draw your attention to the points in your signed agreement:

 

8.1. In order to terminate this tenancy at the expiry of the fixed term, the tenant(s) named in clause 1.5 must give at least one months' written notice to the landlord prior to the contractual date of this tenancy agreement. If the rental is extended beyond its fixed term and becomes a periodic tenancy, the tenant(s) will be required to provide one months' written notice prior to the contractual date in order to bring the periodic tenancy to an end.

 

I do agree you called and spoke to me that your intentions were to vacate, however I informed you that we must receive this notice in writing, which you have failed to provide.

 

I can take this email as your notice to leave but you will be liable to make rental payments up to 5th December. (30days from this notice).

 

My Reply.

Hi Thank you for your email.

 

Again I will tell you that I will be leaving the apartment on or before the 14th of November as good will gesture. The contract term you have given is unfair and unenforceable. If you pursue this matter any further then I will have no alternative to report this to the Office of Fair Trading. Any attempt to take any money will be defended using the UK court system.

 

I advise you to seek legal advise before you reply to this email.

 

Susan.

 

Their Reply.

Today at 11:43 AM

Once again as per the contractual agreement you have signed with us you must provide WRITTEN notice to vacate.

 

We have sent you a number of letters and emails which we can provide as evidence to show you have failed to provide the written notice.

 

Should you fail to make the notice period rental payment we will retain from your bond.

 

The amount for your records will be - £440.00 (£600 rent / 30days in month = £20per day. £20 x 22days (14/11/14-5/12/14) = £440).

 

I have also enclosed your contract which is signed, and all the letters and emails sent to you regarding written notice. For all we knew you could have changed your circumstances and wished to stay in the apartment.

 

Should you disagree you will have to dispute the matter with the company where your bond is held (My Deposits) this will have to be done following a check out appointment.

 

 

Can anyone advise on how I should now proceed with this.

[The Carpet Cleaners]

Move out on or before the 14th, as you planned, as you are perfectly correct. You do not need to give notice to end the fixed term, as the judge said to me when I took my last LL to court for the same thing, "you gave notice 6 months ago when you signed the agreement".

 

On 15th claim back your full deposit from the protection scheme. Do NOT rely on the letting agent or LL to return it. If the LL tries to withhold it for rent in lieu of no notice, as for arbitration or... Just go straight into issuing a letter before action for the return and then initiate court proceedings.

[mariner51]

Please confirm the last day of fixed term is 14 Nov and that you have an Assured Shorthold Tenancy as per Housing Act, and not a Contractual Tenancy.

OFT Guidance is just that, but Judges tend to follow it.

LL has accepted you will not be staying 1 min beyond fixed term end, so your rent liability ends at 23.59.59 on last day of fixed term.

[_Mark_]

Thank you for replies.

 

The contact says it is a ASSURED SHORTHOLD TENANCY AGREEMENT.

 

1.9 Initial TERM of the tenancy in months will be : 6

COMMENCEMENT date from and including : 14 May 2014

EXPIRY date; to and including : 14 November 2014.

 

 

Also just looking at the contract again sections 8 says

 

The following are SPECIAL or ADDITIONAL CLAUSES negotiated between the parties. Then it has the 8.1 statement above. This was not negotiated and is just in the contract.

[_Mark_]

Ok I have now checkout of the property and there was no problems with anything.

 

Do they have a right to take the £50 checkout fee?

I will be disputing the £440

 

Here are details on how to dispute the reduction of the deposit.

http://www.mydeposits.co.uk/sites/default/files/mydeposits%20Conditions%20for%20Deposit%20Disputes%20nm.pdf

 

Do you think I should go through ADR or go through the court system. I know I will win virtually 100% of the time going through the court system but what about going the ADR route.

 

Can anyone tell me the best way to proceed.

 

This is an email I have just received.

Hi Susan

 

Following a check out of Apartment with your son today, please see below list of charges from your protected bond of £830.00:

 

£50 Check Out Fee as stipulated on the final page of the Assured Short hold Tenancy.

£440 Rental period 14th November to 5th December 2014. Payment due as failed to provide 30days written notice as stipulated on final page of Assured Short hold Tenancy. We received written notice from you on the 5/11/14 after sending a number of reminder letters, emails and notes to you. (£600 rent / 30days in month = £20per day. 14/11/14-5/12/14 = 22days. £20per day x 22days notice = £440.00).

 

Therefore a bond return of £340 is due.

 

Could I please request bank details for the return payment and also a forwarding address for yourself?

 

Should you not agree with the above charges please inform us in writing that you intend to dispute through the My Deposits dispute process. Please see attached guidance notes on how to dispute a claim. Should you have any queries please do not hesitate to contact us. Your Deposit Protection Certificate can be found in your Check In pack, from when you first moved into the apartment. (Certificate Number XXXXXXXXXXX)

 

Kind Regards

Edited November 12, 2014 by _Mark_

[raydetinu]

They have no right to take check out fee from deposit.

up to you if go through ADR, but usually good place to start, as if you win that and they still wont refund you have that decision on your side.

Nothing to stop you in fact doing both, Start proceedings if you wish, but send them a letter before action stating that you want all your money back or will start proceedings.

 

 

As for the notice, you gave that when you signed the six month contract.( contract valid for six months and that's it ). can only be extended by agreement, which is taken if LL does not issue a S21 before the end of the contract.

[_Mark_]

I sent to mydeposits adjudication and have lost here are the details.

 

Dispute, evidence and findings:

1. The Landlord is claiming:

i. Rent in lieu of notice £440.00 .

2. The Tenant asserts that:

i. Called the Landlord on the 15th October 2014 to let them know she would be

vacating the Property at the end of the Fixed Term which was acknowledged;

ii. Although she accepts she was advised to put it in writing she never did.

 

General conditions

 

3. Both parties are conversant with the facts of this case and the issues in dispute. The

parties should be reassured that all the documents and points made have been

considered in reaching this decision but the Decision itself only refers to the relevant

evidence and not necessarily all the information provided.

 

4. It is for the Landlord to establish by evidence that, on the balance of probabilities, the

Tenant was in breach of their obligations under the Tenancy Agreement, and that any

expenditure claimed is reasonable and proportionate. Unless the Landlord can establish

an entitlement to a payment from the Deposit it belongs to the Tenant.

 

5. The decisions and comments in this Adjudication only relate to the Deposit Dispute. If

any comments are made on any other matters aside from the Deposit Dispute, they are

not intended to have any authority and will not have any judicial or binding sanction.

 

 

6. Where the dispute relates to the ‘condition’ of the Property, it is appropriate to consider

fair wear and tear when making any award. Fair wear and tear is defined by the Home

Letting Service as ‘damage that has taken place over time through normal use’ and by

the House of Lords as ‘reasonable use of the premises by the Tenant and the ordinary

operation of natural forces’.

 

 

7. Where the issue in dispute relates to a provision in the contract, the Office of Fair

Trading Guidance on Unfair Terms in Tenancy Agreements is very clear on the subject

of unfair standard terms. A term will not necessarily be fair just because it appears in the3

Agreement and can be found to be unfair and unenforceable if it fails to meet the tests

of transparency and fairness.

 

 

8. I have had submitted in evidence the Tenancy Agreement and letter/email

correspondence. For the purposes of this dispute I refer to paragraph 8.1 of the

Tenancy Agreement. Having considered the evidence, my understanding is as follows:

 

9. The Tenant asserts that did not have to give notice if the tenancy was going to end

on the Fixed Term end date.

 

10. The Office of Trading Guidance does indeed stipulate that a Tenant is not obliged to

give notice to terminate the tenancy at the end of the Fixed Term; however this

Guidance only applies to standard clauses in a contract. Special Clauses fall outside the

Guidance and it may have been prudent of the Landlord/Agent to explain this to the

Tenant when enquiring of her intentions in various letters.

 

11. However I am satisfied by the Special Clause 8.1 in the Tenancy Agreement, signed

and agreed to by the Tenant, that the Tenant was obliged to provide the requisite notice

and she therefore is liable for rent in lieu of notice from 14th November to 5

th December

2014 calculated as follows:

£600 x12/365 = £19.73 per day x22 days = £433.97

[honeybee13]

I'm sorry to hear that. Thank you for updating the thread.

 

HB

[Steve__M]

The take-away points then is that while the Office of Fair Trading has listed clauses that they believe are unfair and therefore not legal, the adjudicators may allow the clauses to stand if they are "special clauses".

 

This is disappointing as in this case the clauses did not appear to be particularly "special".

 

Other than being in their own section, were they in a different font? Did they have a separate section for signature by the tenant? How many clauses were there?

[_Mark_]

The special clauses section was initials separate from the signature.

 

I have attached an image of the special section.

 

Would it be worth reporting the unfair terms to FCA see what they say and then go to court if they say the terms are unfair even if they are in special clauses?

Edited January 28, 2015 by _Mark_

[raydetinu]

Not really 8.1 to 8.3, if these clauses are acknowledged by the tenant either by their initials or referenced to in the main contract then little they can do, as IMHO would not class as unfair.

Tenant could have crossed them out by agreement or plain just not accepted them before signing contract.

Old adage; read the contract before signing it!

however the others could be challenged to reflect the actual cost rather than just punitive!

[_Mark_]

I did not put this before but I did actually write a notice letter to them but did not deliver it because they sent me the following letter. I then took this as they had accepted my notice by telephone.

 

We write to confirm that you have recently informed us that you will be vacating

your apartment. Your checkout appointment needs to be confirmed for on or around

the 14/11/14 and a time arranged. Please be aware you do need to be present and

we do not conduct checkouts on a weekend.

 

To avoid any deductions from your deposit please ensure all blown light bulbs

have been replaced and electrical appliances are in full working order. All

accessible windows, including balconied (if applicable) should be cleaned prior

to the check out as should the apartment as a whole. Your apartment was

professionally cleaned prior to your occupancy and we will expect the same

standard on vacation. This includes all white goods and kitchen appliances,

freezers should also be defrosted.

 

We will request meter readings on the day of vacation from the concierge team

and write to the utility companies on your behalf, please do not contact them

before check out. Please inform us of the supplier you currently use and

forwarding address.

 

To process your bond return quickly it would be useful if you could notify us of

any missing inventory items as soon as possible. We will need bank details of

where to return your bond to at the checkout appointment.

We would also like to make you aware that any rent paid to us in error after

your last rental payment, will incur an admin fee of #30 to return this back to

you.

If you would like any further information relating to your check out please

contact us at

King regard

[mariner51]

What is the value of writing a letter of complaint if it was never sent? None at all.

[_Mark_]

Hi

 

Today I have found out that they re let the property on the 30th of November as I have been changed for rent from the 30th to the 5th decmeber is there anything I can do? Or will they say it is a penalty not and extension of the tenancy.

[Steve__M]

They should only have charged you for their losses.

 

They should refund you your rent for the days the property was re-let (up to the amount of rent they received from the new tenant).

 

Arguably they could charge a small proportion of the reletting costs because they had to pay them earlier.

 

When did the adjudication take place? I wonder if they knew they'd relet the property at the time.

[_Mark_]

I did not start the adjudication process until the 4th december so they knew when the process started but I don't think they told the adjudicator they had re let the property on the 30th.

[mariner51]

They might have re-let flat on 30 Npv, but did new T occupy later?

Nowhere has OP indicated the last day of fixed term, nor stated when he actually vacated.

LL has adjudication that T failed to ptovide Notice as req'd by special clause 8.1 and rent in lieu is due up to 5 Dec.

Adj may have got it wrong. It still allows OP to sue LL for overpaid (unused) final rent (~£100) in SCC IF he can prove new T was in occupation and paying rent before 5 Dec, if he wishes. Maybe an LBA would elicit some repayment?

[_Mark_]

The fixed term tenancy expired on the 14th november 2014

 

I left the Apartment on the 12th November 2014

 

The council tried to charge me council tax until the 30th of november they told me because a new tenent had registerd from that date. So I am assuming this is when they got a new tenent.

[Steve__M]

Council tax issue sounds like good evidence to me.

 

You should probably start by writing to the landlord/agent.

 

The deposit protection company may feel it has done its job, but it may be worth contacting them with a claim that the landlord failed to provide necessary information.