Statutory or contractual periodic tenancy?(4 Posts)
Just posting this on the off-chance anyone has experience of this! If there is a more appropriate section of the site to post tenancy questions, please let me know...
I have been renting my flat for 2.5 years. The initial AST term expired after a year, so we have had a rolling periodic tenancy for 1.5 years. I am now in the process of moving and am totally confused as to how much notice I need to give. My understanding is that if I am now on a statutory periodic tenancy, I need to give one month's notice. And if I am on a contractual periodic tenancy, I need to give the notice specified in the contract (two months).
The contract states:
"^If the Tenant intends to vacate at the end of the fixed term, or any later date, he shall give the Landlord two months' notice in writing. While the tenancy is periodic, the two months' notice must expire the day before a rent due date.^"
Based on this I would assume a contractual periodic tenancy under s.5(4) of the Housing Act (since the contract provides for the tenancy to continue after the initial term). But then, the contract also says:
"^If at the end of the fixed term the Landlord does not seek possession and the Tenant remains in the Property, they will be considered, by virtue of section 5 of the Housing Act 1988, to have a statutory periodic tenancy.^"
So unless I am misunderstanding, we have contractually agreed that the periodic tenancy will be statutory rather than contractual?? But this conflicts with the other provisions, which imply a contractual tenancy and that the two months' notice will still apply...
I would really appreciate your views on this, particularly if you have had experience of interpreting similar apparent drafting conflicts. My very strong preference would be to give one month's notice (otherwise we will be paying for two properties for about six weeks - ouch) but if two months is legally required, then so be it.
Thank you very much in advance!
If you had a 1 year AST that has expired and you have not signed another AST, you have rolled onto a periodic tenancy, therefore you only need to give one months notice, this should be given on the day your rent it due. It doesn't matter what is in the agreement if it contradicts the law. The law states you need to give one month. LL would need to give you 2 months.
that's it - contract can't override law.
so it is one month for you, to expire on the day the rent is normally paid. LL can't have it both ways, if they wanted longer notice they need to pay the agent for a new tenancy agreement.
make sure notice is in writing. Assuming you are waiting for exchange on a sale to give notice - always wise.
Thanks both. That was always my understanding of the position, I just came across the concept of a 'contractual periodic tenancy' for the first time yesterday and panicked slightly (!) but having read a little more it looks like that only arises if it is very specifically provided for in the tenancy agreement. So, a month's notice it is! Thanks again
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