TENANT’S NOTICE TO QUIT – LENGTH OF NOTICE

An enquiry has been received by me via Twitter (@garetharcher) relating to the length of notice that a tenant is obliged to provide the landlord to terminate the tenancy. The landlord, who raised the enquiry, asked if putting a provision in the Assured Shorthold Tenancy agreement for the tenant to provide two months notice to the landlord was binding upon the tenant ie. could the landlord insist on two months notice rather than one month as is common place?

The answer depends on whether the tenancy is still within the fixed term or has become a periodic tenancy.

Termination during the fixed term

Contractually, the tenant will be liable for the rent for the whole of the fixed term, even if they leave the property early. A tenant who wishes to leave during the fixed term would only be able to do so if the tenancy agreement allows (eg. a break clause, assignment of the tenancy or underletting) or with the agreement of the landlord that the tenancy would be surrendered.

If the tenant wishes to give notice to end the tenancy when the fixed term expires (on the last day of the fixed term), unless there is provision within the tenancy agreement, no notice need be given. The fixed term tenancy would simply come to an end provided that the tenant moved out before the end of the last day of the fixed term.

It is usual for a landlord to seek notice of the tenant’s intent to vacate the property at the end of the fixed term. For this reason, contractual provision is made within the tenancy agreement for them to give notice, whether that be one or two months. If the tenant fails to give that notice, it is then for the landlord to consider enforcement action although provided the tenant pays rent to the end of the fixed term, the landlord’s loss may be minimal, if any.

Termination of a periodic tenancy

Once the fixed term has expired, and the tenancy has become a periodic tenancy (whether statutory or contractual), the tenant is obliged to give notice if they wish to leave. NOTE: If a new tenancy agreement has been entered into and a new fixed term agreed, the position remains as provided above (see “Termination during the fixed term“).

During a periodic tenancy, the tenant’s notice must:-

• Be in writing;
• Give at least four weeks notice (as provided by Section 5 of the Protection from Eviction Act 1977). At least four weeks notice must be provided if the rent is paid on a weekly basis or at least a month’s notice if the rent is paid on a monthly basis;
• Expire on the last day of a period of the tenancy. For example, if during the periodic tenancy, rent is paid on the 15th of each month, the notice period provided by the tenant must end on the 14th of the month.

Whilst the tenancy agreement can provide for notice during the fixed term, the tenancy agreement cannot change the position under a periodic tenancy due to the provisions of Section 5 (3)(e) Housing Act 1988. Arguments as to the fairness of a clause seeking longer notice may therefore arise as a clause requesting, say, 2 months notice would go beyond that as provided for by Section 5.

Therefore, whilst a landlord can ask, during a periodic tenancy, for the tenant to provide two months notice, the tenant may not be obliged to provide this if rent has been payable on a weekly or monthly basis, leaving the landlord to consider whether or not they wish to pursue a claim for rent for the whole period requested from the tenant in the agreement.