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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hello, I am presently leasing a property in Wilts. It has

Resolved Question:

Hello,
I am presently leasing a property in Wilts. It has been a rolling 6 month tenancy which, as I work overseas I pay in advance (due to issues with searches and employer references). There is a clause that states that on or after the 7th Jun 13 I can terminate the lease by giving one months notice. The end of the present lease is the 6th Jul 14. Having written to the agent I have now received the following from them;
Mr Young,

As you currently pay the rent 6 months in advance each time, you are locked into the Tenancy until 6th July 2014. You are welcome to give your notice now, but please be aware that you are tied in until 6th July 2014.

If you are keen to be released, we can ask your landlord if they are happy to release you but ONLY on the basis that a new tenant is found. You will then pay rent up until that tenant moves in and takes on the Tenancy. In your case obviously you have already paid, so we will have to ask the landlord to refund your rent.

As you are coming out of tenancy early, you will also be liable for the landlords set up fees (Tenancy Agreement, Inventory & deposit fees)

If you would like to discuss this any further, please do not hesitate to contact me.



I have replied to them stating that I do not believe that this is correct and is not within the terms and conditions of the lease agreement. There was no amendment at any time stating that I would not be refunded rent paid should I vacate within the 6 months or that I would be liable to pay any new set up fees.

I would be interested to hear your thoughts and what my legal standing is.

Thank you

Nick
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Customer:

Hello,

Customer:

Hello, I can find no answer to my question??

Joshua :

Hello. Are you able to read my above posts?

Joshua :

In case not I will repost it below...

Joshua :

Can you confirm if you have signed a new agreement every six months or if you simply signed an agreement originally and then have just paid rent every six months without signing any new agreements?

Customer:

Just the original agreement. With an amendment recently adding my Daughter as a tenant in addition to myself.

Joshua :

Thanks.Was this by way of a deed of variation which left the original agreement intact but for the addition of another tenant

Customer:

Hello,

Customer:

I have checked and it was an extension agreement as below;

Customer:

Extension Agreement




THIS EXTENSION AGREEMENT is made on the 7thday of January 2014



BETWEEN



Mrs Susan Pitman



of 4 The Skillins, Kington St Michael, Chippenham, Wiltshire, SN14 6RL



("the Landlord")



of the one part; and



Mr XXXXX XXXXX & Miss Francesca Young



of 11 Church Farm, Yatton Keynell, Chippenham, Wiltshire, SN14 7FD



("the Tenant")



of the other part; and



IT IS AGREED AS FOLLOWS:



The Landlord grants to the Tenant an extension of the Tenancy from and including 7th January 2014 ("the Commencement Date") to and including 6th July 2014 ("the Termination Date") upon the same terms and conditions of the Agreement dated 7th January 2013 ("the Agreement")



SIGNED by the Landlord



Susan Pitman …………………………………………………………….……………………….




of 4 The Skillins, Kington St Michael, Wiltshire, SN14 6RL





SIGNED by the Tenants



XXXXX XXXXX ……………………………………………………………………………………



Francesca Young …………………………………………………………………………………..




of 11 Church Farm, Yatton Keynell, Chippenham, SN14 7FD

Customer:

It states that the terms and conditions of the original agreement of 2013 remains in force

Joshua :

Thanks - just reviewing the same.

Joshua :

Thanks. Have any previous extensions in the above terms (notwithstanding the addition of your daughter) ben signed or is this the first one?

Customer:

The last agreement was signed for the lease that commenced on the 7th Jan 2013 which is when my daughter was added as a tenant. On the renewal in Jul 2013 there was no extension signed. The last one we received was the one I sent you. Sorry to sound a little vague but trying to source docs etc. I have only a hard copy of the full Jan 13 agreement.

Joshua :

Thanks. So to summarise, the tenancy started in 7 Jan 2013. There was an extension signed in July 2013 to extend the tenancy and add your daughter to the tenancy. Since then nothing has been signed. Is that an accurate summary?

Customer:

An original tenancy agreement was signed by myself as the sole tenant back in Jan 2011. A new agreement (full) was issued and signed by the two of us in Jan 2013 for a period of 6 months. It was extended in Jul 13 but nothing was signed. An official extension (as I pasted in) was signed in Jan 14 by the 2 of us. The agreement of Jan 2013 (full) has the clause that post 7th June 2013 I can terminate the tenancy by giving not less than one month notice, and that the Landlord can do the same by providing no less than 2 Months notice. So with regard the latter, if she was to terminate by giving 2 months notice surely she would have to refund the rent paid in advance for the months from termination to the end of the tenancy? If so, then surely the same applies to the clause that allows me to terminate by the provision of one months notice.

Joshua :

That is very helpful - thank you. Finally if you have it available could you tell me the provision for rent in the agreement dated 7 Jan 2013. If you have the exact wording even better but failing which does it say that the rent is paid monthly subject that it must be paid upfront or does it say that the rent is paid every six months in advance?

Joshua :

I am due to log off shortly as I have an appointment at 5pm. Would you like to continue before that? If you are otherwise engaged I will be available later this evening to come back to you if you can come back to me on the above in the meantime.

Customer:

Clause 1; Term of Tenancy - The Landlord lets to the Tenant the Premises for a period of SIX MONTHS. The Tenancy shall start on and include the 7th January 2013 and shall end on and include the 6th July 2013 but subject to clause (29.4/29.5) Clause 2; The Rent - The Tenant shall pay to the Landlord or the Agent £785.00 per month X six months = £4710.00 ("the rent") payable in advance by Cash, Bankers Draft or Building Society Cheque. The first payment shall be made on the 7th Jan 13. Thereafter, payments shall be made on the 7th (seventh) day of each six monthly period.

Joshua :

Thanks - just reviewing.

Customer:

The fact that I pay in advance is purely because I work overseas and obtaining references etc was to difficult for the agent, so I agreed to pay in advance.

Joshua :

Thanks for this. I apologise for the number of questions however it was important to be crystal clear on the facts in this case. Based on what you have told me the position is that you have here something called a statutory periodic tenancy because the extensions that have been signed were not signed before the expiry of the initial term. Had there been a succession of extensions signed in each case before the expiry of the original agreement, the position would have been different but because this is not the case a periodic tenancy applies.

Joshua :

The importance of a periodic tenancy here is that the Housing Act overrules the original tenancy in terms of notices including a break clause provision unfortunately. As above had a series of extensions been signed in each case before the expiry of the former extension then you could have relied upon the break clause but because this is not the case unfortunately you cannot because the Housing Act steps into to overrule the original tenancy in respect of notice provisions - this was why I wanted to be sure on the above facts.

Joshua :

The Housing Act provides that you must give notice equivalent to your periodic payment of rent in order to move out of the property. Normally this would be one month but because rent is demanded and paid every six months the periodic notice period is 6 months. Accordingly the landlord could potentially seek to force you to give an even longer notice period of more than 6 months though it is unlikely the agent will be sufficiently familiar with the provisions of the Housing Act to realise this is possible.

Joshua :

The agent requirement that rent is payable until 5 July is in fact - though I appreciate it is not what you want - a better position than that you are entitled to under the Housing Act and accordingly it seems sensible to accept this in the circumstances I regret. It is possible to ask the landlord to remarket the property however given that the agent is prepared to release you after 6 July it is questionable whether this would be worthwhile as it may take several week to find a new tenant and you would be liable for the landlords reasonable remarketing costs.

Joshua :

I am sorry I cannot be more positive in what I say above. Normally a tenant can leave a periodic tenancy relatively quickly needing to only give one months notice where he pays rent monthly but it is the payment of rent at 6 monthly intervals that gives rise to a much longer notice period which in turn makes the agents position seem like by some distance the better option.

Joshua :

Is there anything above I can clarify for you?

Joshua :

If you have any follow up questions I will be very pleased to revert to you later this evening.

Customer:

Thanks. But surely as we received an extension agreement prior to the end of the previous extension does this not apply. In addition, the extension refers to the original agreement that provides the clause for us to terminate with 1 months notice. In addition if the agent has failed to provide an extension agreement in time, is this not there failing? Finally, the rent was monthly and would have been paid monthly but it was only due to my employment that I agreed to pay in advance. At no time was I made aware of the fact that I was tied in to a periodic tenancy. And what about the Cause that is still within the agreement that allows 1 months notice to be provided. Surely, the agent has a responsibility to ensure that I made aware of any changes and that the conditions have changed.

Customer:

As I am presently in Perth AU, so I am now retiring for the night. But if you can revert back with regard my last comments then it would be appreciated. I guess my argument is still that the original agreement is still in force and provides through that clause the option to provide one months notice, plus that the agent has failed to inform me that my rights have changed and failed to provide extension agreements on time. Thanks for your help to date. Nick

Joshua :

Sorry for the delay in reverting to you. Whilst the above are all perfectly logical and respectable points the difficulty is the Housing Act, in particual s5(3) (e) of the Housing Act 1988 which provides that where a fixed term contract comes to an end without an extension being granted or without a new contract being put in place a statutory periodic tenancy arises. A statutory periodic tenancy is implied by the above section as if the landlord had granted you a new tenancy on a periodic basis determined by the last period for which rent was paid. In other words here because the rent was paid for a six monthh period the periodic tenancy that arises is a new six month tenancy rolling over again and again until either you or the landlord give notice to end the periodic tenancy.

Joshua :

Because the Housing Act has overruled any notice provisions in the original tenancy it is not possible because of statute to rely on the break clause provision from the original tenancy. I take your point regarding this being the landlords (agents) fault rather than yours but unfortunately this is not recognised in statute. The terms of statute are absolute irrespective of fault unfortunately.

Joshua :

Accordingly undert the terms of the Housing Act in order to end the tenancy either you or the landlord must give the statutory notice period which is equivalent to one period of the tenancy and must end the day before rent is payable. If you do the maths on this the next lawful point at which you could legally end the tenancy is therefore the day before rent is next payable in january 2015. Fortunately the agent seems unaware of this which is unsuprising but clearly the actual statutory position is far far worse that the agent is proposing.

Joshua :

There are significant issues created as above when rent is paid other than monthly if formal agreements are not renewed before they expire. I appreciate the agents position is frustrating and in addition I appreciate your views that the original terms of the agreements should be binding but unfortunately this is not reflected in legislation. Equally this is something that should not be considered for challenge in the county court in my view because whilst the agent is unaware of the above a judge is likely to be and you could potentially through such a challenge expose yourself to a far greater rental liability through to January 2015 than that proposed by the agent.

Joshua :

I am very sorry I a cannot provide a more positive assessment than the above. However to do so would not reflect the statutory position and I am very concerned that you could expose yourself to singificant additional liability in challenging the agents position as discussed above.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Joshua and 3 other Law Specialists are ready to help you