Tenant Termination of a Periodic Tenancy
A periodic tenant must provide notice in writing of their intention to leave. The minimum notice period is 4 weeks (specified in section 5 of the Protection from Eviction Act 1977). In most cases, the contract will specify at least a month for a monthly rental and that notice should always expire at the end of a rental payment period. The contract may also specify the terms on which notice may be given, and if the terms are standard terms, they will only be enforceable if they are fair.
In practice, tenants sometimes choose to ignore notice requirements and will leave when convenient to them. It is often not worth the landlord’s time or cost in attempting to chase the tenants to enforce those requirements. Concentrate on getting the property re-let.
Tenant Termination of a Fixed-Term Tenancy when it Expires
There is no statutory requirement for a tenant to serve notice to end a fixed-term tenancy at the end of that fixed term. The tenant is generally entitled to leave without giving any notice.
Any standard clause in the tenancy agreement requiring the tenant to give formal notice to leave at the end of the fixed term (and making the tenant liable for rent in lieu of notice if they fail to do this) may contravene the Unfair Terms in Consumer Contract Regulations 1999 and could be unenforceable. Only a court can decide if any given clause is fair or not. A clause asking the tenant to inform the landlord whether or not they will be leaving, so that arrangements can be made for the property to be checked and the damage deposit returned to them should not cause problems.
Tenant Termination of a Fixed-Term Tenancy before it Expires
If the tenant has a fixed-term tenancy but wants to terminate it before the term expires, they can only do so legally:
• with the agreement of the landlord; or
• if early termination is allowed for by a break clause in the tenancy agreement and the tenant has followed any requirements for giving notice specified in the tenancy agreement; or
• in a few rare cases, if the landlord is in very serious breach of his obligations (but the breach must be “fundamental” to the tenancy).
If the agreement does not allow the tenant to terminate early and the landlord has not agreed that he or she can break the agreement, the tenant will be contractually obliged to pay the rent for the entire length of the fixed term. If the landlord accepts the return of the tenancy, it is possible that the tenancy comes to an end due to “surrender by operation of law”.
This occurs where the landlord and the tenant behave in a way that is inconsistent with the continuation of the tenancy. If the tenant offers to hand back the keys, make sure that at that stage any conditions connected with that return are agreed, and record them in writing. For example, are the keys only being accepted on the basis that the tenancy continues until a new tenant signs up at the same or a higher rent? Once a landlord accepts a surrender of the tenancy, the tenant’s liability for future rent ends unless it has been agreed otherwise. Unlike a claim for compensation for damage, the landlord is not under a duty to mitigate his loss if the tenant is liable for rent.
Payment of rent is a debt, and the rent is due for as long as the tenancy continues. However, once the tenancy comes to an end (e.g. if the landlord agrees to accept the property back) the tenant’s liability to continue paying rent stops (but they remain liable for any arrears that accrued up to that point).
If a tenant wants to end their fixed term tenancy early, landlords should explain to tenants that the fixed term tenancy requires the tenant to pay rent for the duration of the agreement. Some tenants will wish to change their plans at that point and stay at the property until a new tenant is found.
Landlords may then agree with the tenant that both of them will try to find a new tenant.
Landlords should ask the tenant to agree to pay reasonable additional costs arising from the tenant’s proposed departure, such as re-letting fees. Landlords should also inform tenants that any early termination of the tenancy is conditional on the property being handed back in good order, with rent paid up to the date when the new tenancy starts. Write to the tenant setting out the conditions and ask them to write back confirming acceptance of the conditions.
In the meantime, to avoid any inference of a surrender occurring “by operation of law”, do not do anything that would be “inconsistent with the continuance of the tenancy”.
Do not treat the tenancy as over until the new tenancy starts.
If an agreement is not reached, a tenant may decide to abandon a property and a landlord will have to decide if it is feasible to take any enforcement action against the tenant. This would be by way of a small claim in the county court.
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