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5.3 What To Do If The Tenant Wants To Leave

5.3.1 Tenant Termination Of A Periodic Tenancy

 

A periodic tenant intending to leave must provide a notice to quit in writing. The minimum notice period is four weeks (specified in section 5 of the Protection from Eviction Act 1977). The length of the notice should be at least the length of a rental period (subject to the four week minimum rule and up to a maximum of six months). In most cases this will be a calendar month for a calendar monthly rental. Where the rent is quarterly, a quarters notice is required, six monthly or yearly requires six months notice. The notice should always expire at the end of a rental payment period or the first day of a new period.

 

The contract may specify the terms on which notice may be given which must be fair.

 

Sometimes, tenants ignore notice requirements and will leave when convenient to them. It might not be worth the landlord’s time or cost in attempting to chase the tenants to enforce those requirements. Concentrate on getting the property re-let.

 

Where a tenant gives a valid notice to quit but then fails to leave, a court order would be required to gain possession which could be obtained based upon the notice given by the tenant(s). A valid notice from a tenant brings the tenancy to an end so a landlord should not ask for rent after this time if possession is to be sought. Where a tenancy has ended this way, a landlord will be entitled to damages for the use and occupation of the premises which is usually equivalent to the rent. Further, where a valid notice has been given by a tenant and they fail to leave, a landlord is entitled to the equivalent of double the rent as would otherwise be payable under section 18 Distress for Rent Act 1737.

 

5.3.1.1 Joint And Several Tenancy

 

Where one of several joint tenants gives a valid notice on a periodic tenancy, the entire tenancy for all the tenants will end unless there is a provision in the tenancy agreement requiring all tenants to give the notice. A standard joint and several clause found in most tenancy agreements, explaining that the obligations are liable by all tenants jointly and severally is not an express provision that requires all tenants to give a notice to quit.

 

5.3.2 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 Consumer Rights Act 2015 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.

 

5.3.3 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 an exceptionally rare case, 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 or her 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 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 may 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.

 

Once a new tenant is found, there should be no ‘double charging’ for the same period. 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.

 

Where a tenancy is jointly held, all the tenants must agree to a surrender during a fixed term.

 
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