Do I really have to give two months notice?

Ella's Situation

‘Rachel, we’ve got a problem! I’ve just spoken to my agent and they say we have to give two months’ notice!’ This was the start of a conversation I had with Ella, who we were about to start referencing for a property in Enfield, ‘I knew that we did during the fixed term but we haven’t signed a contract in two years, so that can’t be right can it?’ she asked.

 Hmm, this is a tricky one – the legal statutory requirement is for the tenant to give one months’ notice and the landlord two months’ notice. However you often see contracts stating that both tenant and landlord must give the same two months’ notice.

Now officially statute trumps contract, and so the law can override anything written in a contract. So you’d think I’d be advising her to tell her agent that she only has to give one months’ notice and signing her up for my flat as soon as possible but……… it’s not that simple!

If the tenancy was a statutory periodic tenancy (i.e. if the tenancy agreement ended at the end of the fixed term) then I’d have been more likely to suggest she point the agent in the direction of the Housing Act and start packing her bags!

However, her tenancy was contractual periodic and the terms and conditions of the contract still applied after the fixed term.

Statutory or Contractual Periodic?

How do you know if your periodic tenancy is statutory or contractual? Well contractual tenancy agreements specifically state what will happen after the fixed term e.g. our Belvoir contracts state –

The Term shall be from and including dd/mm/yyyy to and including dd/mm/yyyy and then the tenancy continues as a monthly contractual periodic until ended following either party giving Notice.

So am I saying ‘statutory periodic – one month notice, contractual periodic – refer to contract?' And didn’t I just say ‘statute trumps contract’ so whether the tenancy is contractual or statutory periodic is irrelevant isn’t it?   

The Expert Opinion

Well possibly (I did say it was a tricky one) but while I spoke to some experts who said

‘Absolutely, the agent is wrong, she can move out in one month, statue applies’.

I also spoke to some who said the opposite

‘Statute only applies once the tenancy has ended and because the period after the fixed term has been catered for in the contract, the tenancy has not ended so statute does not apply.’

And then I spoke to others who said

‘Well…… yes statute applies but…… it hasn’t really been tested yet so who knows what would happen’.

Hmm all very helpful, so what to do? Well, if it was me I think I’d look at what was practical for me.

What would I do?

I’m not sure I would rely on the agent (or landlord) agreeing that I only have to give one months rent and I’m not sure I would rely on a judge agreeing that the clause in the contract was unfair, but what I am sure about is that I wouldn’t want to risk a month’s rent finding out!

Now, if the clause in the tenancy agreement was more obviously unfair e.g. if it asked for 3 or 4 months notice, or more notice from the tenant than the landlord, or if it said that I couldn’t hand in my notice at any point between October and February (yes really!!), then absolutely I’d fight it!

But in this instance I think I would try and negotiate with my agent. I’d be as flexible as possible with viewings, make sure the property is immaculate at all times and keep it smelling like freshly baked bread or freshly ground coffee, all in a bid to get the property let again asap, so that I could move out asap. I’d also try and negotiate a slightly later move-in with the new agent.

Next Time

Most importantly though, I’d make sure I looked at the next contract more closely before signing! Always request a copy well in advance of signing, question anything you’re not sure about and if in doubt get a second opinion.

Please note – The above post is for general guidance only and anyone in this situation should seek formal legal advice.