Contractual Periodic Tenancy v Statutory Periodic Tenancy

[Cannonball]

My questions concerns notice to my tenancy; I've searched many many pages here and not found an answer to my particular query, although many go close....apologies if it does duplicate.

 

I signed a contract in 2007 for a six month tenancy, paying monthly, (with a reputable agency), which after the six month period, then continued on a month by month basis. The clause in the contract which covered this continuation states...

 

"The premises and the furniture shall be held by the tenant for the term of six months, commencing on the commencement date and, should the tenancy not be determined at the end of the such period, by either party giving notice to the other not less than two months in writing it shall continue thereafter from month to month until it shall be determined by either party giving to the other not less than two months notice in writing."

 

I wish to terminate my tenancy in 6 weeks and have written to the Agent, stating "......as we are now on a month by month agreement, a 2 month notice period is actually invalid, and we are only required to provide one months notice to terminate, with the termination date coinciding with the last day of a rental period."

 

The Agent has responded as follows : "It is correct that the notice requirement would be based on the payment period if there was no provision in the Tenancy Agreement for the tenancy to continue after the end of the initial fixed period i.e. it became a Statutory Periodic Tenancy. However in the case of the AST signed by you, it made provision for the tenancy to continue on a month by month basis at the end of the fixed period of six months, at which point it became a Contractual Periodic Tenancy. The Housing Act does not specify any notice period in respect of the tenant, therefore the notice period is of a contractual nature i.e. two months"

 

They go on to say this has been supported by their solicitor and association compliance manager.

 

My question is - am I bound by a 2 month termination period? If I am then so be it and I'll honour my commitment, but from what I've read on this forum, they are already incorrectly stipulating a two month notice period at the end of the initial six months, so are they also trying it on with the Contractual Periodic Tenancy statement and forcing me to give 2 months notice now?

 

Many thanks in anticipation of response.

[Planner]

What was the tenacy? Was it an Assured Shorthold Tenancy (AST) or some kind of commonlaw tenancy?

[Cannonball]

It's an Assured Shorthold Tenancy AST

[Planner]

Then your agents are wrong. On the expiration of the fixed term of an assured shorthold tenancy, the tenanacy automatically becomes a stautoriy periodic. No term in the contract can remove this right which is enshrined in law. Therefore the notice period is one full calander month.

 

If you signed the original contract on or after 6th April back in 2007, then your depsoit should be registered in one of the tenancy depsoit schemes who will mediate any dispute on your behalf.

[Cannonball]

Brilliant, thanks.

 

The agreement was signed before April, so unlikely to be with a tenancy deposit scheme.

 

I'll feedback how I get on.

[cardinalt]

Then your agents are wrong. On the expiration of the fixed term of an assured shorthold tenancy, the tenanacy automatically becomes a stautoriy periodic. No term in the contract can remove this right which is enshrined in law.

errr, but what about the next subsection of the housing act:

(4) The periodic tenancy referred to in subsection (2) above shall not arise if, on the coming to an end of the fixed term tenancy, the tenant is entitled, by virtue of the grant of another tenancy, to possession of the same or substantially the same dwelling-house as was let to him under the fixed term tenancy.

Surely the argument here is that the provision in the contract made just such a tenancy? and thus the statutory periodic tenancy is not created...

[Planner]

errr, but what about the next subsection of the housing act: Surely the argument here is that the provision in the contract made just such a tenancy? and thus the statutory periodic tenancy is not created...

 

No, its simply saying that if another new fixed term AST is issued, a statutory periodic will not arise and the 'old agreement' will come to an end.

[cardinalt]

No, its simply saying that if another new fixed term AST is issued, a statutory periodic will not arise and the 'old agreement' will come to an end.

 

I don't see anything in the legislation that specifies the new AST has to be fixed term - it simply refers to the grant of a new tenancy for that property, which it would appear is what the agent is arguing is the 'contractual periodic tendancy'

[Planner]

I don't see anything in the legislation that specifies the new AST has to be fixed term - it simply refers to the grant of a new tenancy for that property, which it would appear is what the agent is arguing is the 'contractual periodic tendancy'

 

No, the only thing that 'new tenancy' can refer to is a new Assured Shorthold Tenancy agreement. Have a read of 20 (1) and Schedule 1 and 5 (1 ) and (2) on Security of Tenure.

Edited May 13, 2009 by Planner

[cardinalt]

Ok, let me check I am reading the appropriate schedules right.

 

schedule 1 basically states that the tenancy is assured (ignoring the exceptions).

 

schedule 5 (1) deals with manners in which the landlord can end it ( irrelevant to the question in hand ).

schedule 5 (2) lays out the definition of the Statutory Periodic Tenancy (SPT). Clearly a SPT invadlidates things like the two months rule under discussion.

schedule 5 (4) however allows for when a SPT is not created. It refers only to the grant of another tenancy (makes no reference to what that tenancy must be).

 

From the schedules you mentioned, I cannot see how the new tenancy must be an AST, although I grant that schedule 1 enforces that it will be assured. But, in this case the contractual periodic tenancy is an AST - since there was already an AST for the same premises, then under 20 (4), the rules of 20 (1)a-c (in this case specifically clause a, which enforces a fixed term) are waived.

[Planner]

Ok, let me check I am reading the appropriate schedules right.

 

schedule 1 basically states that the tenancy is assured (ignoring the exceptions). Yes, the schedule highlights the instances when a tenancy cannot be an assured tenancy.

 

schedule 5 (1) deals with manners in which the landlord can end it ( irrelevant to the question in hand ). Actually one of the most relevant points! Section 5 deals with exactlly the question being asked here... can the AST become a contractural one on expiry of the fixed term? The answer is no as the only thing that can end a tenancy from the landlords perspective is a Court Order (not a tenancy clause).

 

schedule 5 (2) lays out the definition of the Statutory Periodic Tenancy (SPT). Clearly a SPT invadlidates things like the two months rule under discussion. Section 5 (2) As above

 

schedule 5 (4) however allows for when a SPT is not created. It refers only to the grant of another tenancy (makes no reference to what that tenancy must be). Section 5 (4) Yes it does. That tenancy must either be an Assured or an Assured Shorthold - See schedule 1.

 

From the schedules you mentioned, I cannot see how the new tenancy must be an AST, although I grant that schedule 1 enforces that it will be assured. But, in this case the contractual periodic tenancy is an AST - since there was already an AST for the same premises, then under 20 (4), the rules of 20 (1)a-c (in this case specifically clause a, which enforces a fixed term) are waived.

 

If a tenancy fits the criteria of an AST under section 20 (1) and isnt exclded because of one of the reasons in schedule 1 then it must by law be a AST. If a LL/LA could create any type of tenancy they wanted by simply inserting a clause, then there wouldnt be an AST in the land!

[madwayne]

read this with interest as my tennant wants a monthly ongoing after completing 12 months with us in December.

 

My understanding is that an AST becomes an AST Statuory Periodic if notice isnt servered or no provision has been made for the end of the standard AST, otherwise is an AST Contractual Periodic.

 

either way there is provision for the landlord to give two months notice after the initial 6 month period, and provision for the tenant to give a months notice.

 

As to the legalities of the two month provision by either parties at the end of the agreement is debatable, as its been signed and agreed to even though the statutory would give require the month.

 

The reason I am concerned is if either the statutory or the contractual falls outside of an AST, then we couldn't do either.

 

Think its way over complicated.

[raydetinu]

you cannot subvert or introduce cluses that would alter the standard AST or SPT requirements. This is for the protection of tennants!

any clauses inserted tha alter the basic requirements would be deemed unfair and not recognised in court.

[madwayne]

you cannot subvert or introduce cluses that would alter the standard AST or SPT requirements. This is for the protection of tennants!

any clauses inserted tha alter the basic requirements would be deemed unfair and not recognised in court.

 

So basically its left as is 2 months landlord 1 month tennant notice regardless of a clause to suggest differently being written into the contract as in the case in the thread above.

[raydetinu]

correct.