Notice to end an assured shorthold tenancy

[MaraThonbar]

We are currently renting in a twelve-month fixed term tenancy agreement, and we are in the process of buying a house. We don't want to give notice on the tenancy until we have exchanged contracts on the house.

The tenancy agreement is very clear that if we wish to end the tenancy on the last day of the fixed term (l1 August) then we must give two clear months’ notice. We learned today that there is a delay on our vendors’ mortgage offer and that we will not exchange by 1 June, meaning that we will miss this deadline.

Once the fixed term has expired, we are automatically transferred onto an ongoing tenancy agreement, and we are required to give one month’s notice.

Here’s my question:

If we want to leave on 1 August, we have to give notice on 1 June.

Can we give notice on 2 July to leave on 2 August?

Very grateful for any thoughts.

I think it's an unfair clause in the contract to have to give 2 months notice to end a fixed term. If you read the second section on this page of shelters website...

m.england.shelter.org.uk/get_advice/private_renting/ending_a_tenancy/ending_a_fixed_term_agreement

... it suggests you abide by your contract and give notice, but it goes on to say that a government report suggests this might be an unfair clause, as really you shouldn't have to give notice to end a fixed term contract. The whole point is its fixed! Every party already knows when it's going to end.

Unfortunately I don't think the 2nd of June idea will work as you have to make sure your notice coincides with your monthly rent date, and a day over means you must pay for that whole month.

I don't think you can as you're still within the fixed term. Are you renting through an agent? Talk to them and/or landlord and explain the situation. They can start marketing the property when you know your dates for certain and perhaps can be a bit flexible about when you go/when incoming tenants can take over. We did this with a tenant who was in the same situation and it worked and, because we had tenants lined up to move in, we were happy for the tenants to stop paying rent early to coincide with their completion.

I didn't think you had to give notice to end a Fixed term contract? I thought the deal was if you stayed, the tenancy automatically rolls over, but if you vacate by the 1st August then you are just abiding by the terms.

correct. As the tenants, you can end a fixed term tenancy simply by leaving on the last day, although it is common courtesy to give notice. Stay beyond midnight on that day and you go on to a rolling tenancy, when you MUST give a month's notice to expire on the day the rent is paid.

of course you can leave whenever you like but this governs when you can stop paying.

your notice is 1 month, not 2. Contract cannot override law. (england/wales)

I agree that communication is the way forward, and you are very wise not to give notice until exchange.

Thank you, everyone.

The contract was drawn up by an agent but the landlady manages the property herself. I'll phone her today. I want to give her as much notice as possible but equally need to ensure that we don't put ourselves in a vulnerable position.

I wouldn't mention a THING to your landlady until you have exchanged.

even as a landlord - perhaps be a little careful here if you think she might want you to leave earlier than the end of the agreement.

the notice from her to you is definitely 2 months (to expire on day rent is paid) so if you tell her now, she has time to issue notice so that the tenancy will not continue past 1st August. If you leave it until early June, then the earliest you can be asked to leave by her is 1st Sept.

of course she may want you to stay as long as possible and leave it up to you to give notice. My point is that you can drive the situation. After the fixed term expires she knows you could be leaving a month's notice anyway and may well be expecting you to go, especially if she knows you are house hunting.

You can't legally be held to that 2 months' notice clause.

In terms of when you give notice if the contract is rolling, the notice period should usually start on a rent due date (ie if you pay your rent on the 2nd of the month, you should give notice on the second). However, in practice most landlords will accept one clear month's notice starting on any date.

Oh, and I agree - don't tell your landlady yet.

You only need to give one month's notice on or before the rent due date. Yes you can leave without giving notice but that is not advisable.

It is correct that the two month notice clause in your contract may be considered an unfair term and therefore could be ruled unenforceable by a court, however you signed the contract and agreed to the term, so they could try to enforce it, although I think it's very unlikely they would bother or indeed succeed if you sent them the appropriate extract from the Unfair Terms in Consumer Contracts Regulations. Highly likely they wouldn't make a fuss though due to the expense of court battles - highly unlikely, and besides it's you giving her notice so you're in the power seat here - its just a matter of timing.

Notwithstanding the above, as previously mentioned communication is the key and yes some Landlords might put the property back on the market and start doing viewings but it's not uncommon for them to be reasonable and allow you extra time if your sale is held up - just talk to them, be honest and lay out the timescales and ask for their patience. If your landlady is reasonable and you get on well, you won't have a problem. What she wants is no void periods, so if you're in there paying rent, that's preferable to her having it empty for 1-3 months while she looks for somebody else to replace you - its in her interests to help you, therefore, and if her agent is any good they will tell her the same thing.

If you don't say anything and things go wrong, you could end up in a sticky situation.

This all comes from my experience as a Lettings Agent, Estate Agent and Director of the same...just my 2p.