By Mike Edwards
Under the provisions of section 5 Housing Act 1988 when a fixed term tenancy reaches its last fixed date from the next day onwards it becomes a periodic tenancy. This is an automatic process, no-one has to do anything and it happens whether or not the landlord is happy about it, or would prefer a new fixed term agreement to be in place. Either party can state if they want another fixed term but if the other party doesn’t agree then they are going to end up at best with a periodic tenancy. Or if it is the landlord that is insisting on a fixed term then his only option is to give notice to the existing tenant and find a new one.
Few Landlords normally feel that strongly but occasionally if the initial agreement is ending at a date that could make the end of any replacement tenancy awkward – say between mid November and mid March, then it is not uncommon for that Landlord to seek a longer term in an attempt to avoid having to re-let at what is generally acknowledged to be the worst time of the year. It is very much horses for courses at the end of a fixed term as to what the parties would prefer, or indeed insist upon. There are advantages and disadvantages for both parties both in being committed to a fixed term or in having a periodic tenancy. The most obvious for the Landlord is he is at the mercy of a month’s notice from the tenant at any time.
It’s that last day rule again!
The notice must expire on the last day of a period of the tenancy, so if rent is due as per the agreement 1st monthly the notice and any obligations under it – such as rental payments – must continue until that date unless the parties mutually agree an earlier surrender of the tenancy. The Landlord must give two months notice if it is an AST or an AT with the same end of notice period dating requirements. These were clarified in Church Commissioners v Meya (2006) in the Appeal Court and thus the decision is binding on lower Courts.
Notice period.
The requirement of two months notice in a periodic tenancy sometimes causes Landlords real difficulties so the trick is to do a standard visit 10 – 12 weeks before the known end date of the tenancy and while looking around subtly sound out the tenant’s intentions. If there is any hint they might want to go periodic rather than sign up for another fixed term (if that is what the Landlord wants) then serve a s21(1)(b) during the fixed term as a belt and braces position to protect the landlord. The matured notice can then be used at any time during the periodic state. This was enshrined in Case Law many years ago as there is no time stipulation stated in the Statute for how long a matured s21 notice remains valid and can be used in Court. So you could serve a s21(1)(b) on day 2 of a 6 month AST if you like and use it to evict the tenant after he has been periodic for 5 years or any time.
Agreed solution.
Finally if the tenant does want to go periodic then on giving one month’s notice a 13(2) notice can be used if a rent increase is due. A fixed term does give the landlord more certainty – but like the tenant it does mean he is stuck with the other party if his plans change and he wants the house back, so the key to unlock any problems? Discussion! Talk to your Tenants and reach an agreement that satisfies everybody – ah the art of Management!
>> So you could serve a s21(1)(b) on day 2 of a 6 month AST if you like and use it to evict the tenant after he has been periodic for 5 years or any time.
What a bad advice is that!
That’s a sure way to sour the relationship.
Once the tenancy has gone periodic the landlord can serve a s21(4)(a) with 2 month notice before starting eviction proceedings in any case.
Not advice, a fact. All cases need to be looked at in isolation, if a situation exists you require advice on do not hesitate to ask, but please consider that in a short blog, information will always be general and facts may not be the best advice, but they still remain facts!
Steve Roulstone