Statutory assured tenancy — Determination — Notice — Tenants continuing to occupy house after expiry of fixed-term assured tenancy — Tenants subsequently leaving without giving notice — Judge holding landlords not entitled to rent in lieu of notice — Whether notice required — Appropriate length of notice — Section 5(2) and (3) of Housing Act 1998 — Appeal allowed
The appellant landlords granted to the respondent tenants the assured tenancy of a house in St Budeaux for a fixed six-month term. The tenancy agreement set the rent at £390pcm, payable every two months in advance, and provided, in clause 5, that the tenancy “may be brought to an end (but not earlier than the expiry of the term certain) by the tenant giving to the landlord at least one calendar month’s written notice”.
The tenants continued to occupy the house after the expiry of the six-month term. When they finally left, there were arrears of rent, and damage to the premises and contents. The appellants brought proceedings to recover the rent arrears, the cost of repairing the damage, and four weeks’ rent in lieu of notice.
The judge allowed the first two parts of the claim, but refused the third. He held that although clause 5 contemplated that the tenant might continue in possession after the end of the fixed term, and that the one-month notice period would continue to apply, that clause was rendered ineffective by section 5(3)(e) of the Housing Act 1998. Section 5(3)(e) provided that the assured periodic tenancy that came into being, by operation of section 5(2), upon the expiry of an assured fixed-term tenancy, would be on the same terms as the fixed-term tenancy “except that any term which makes provision for determination… shall not have effect…”. The landlords appealed.
Held: The appeal was allowed.
Although it was clear that section 5(3)(e) rendered clause 5 ineffective after the expiry of the six-month term, that left open the question of how the statutory tenancy that then arose could be determined other than by agreement or by order of the court. The statutory tenancy was periodic, and the general principle applicable to periodic tenancies was that they continued, from period to period until determined by proper notice: see Javad v Aqil [1990] 2 EGLR 82. The notice period had to be at least equal to a period of the tenancy, and expire at the end of that period. By virtue of section 5(3)(d) of the 1998 Act, the relevant period was that “for which rent was last payable under the fixed term tenancy”. In the instant case, that period was one calendar month, since the amount of rent was calculated as a monthly sum. The fact that it was payable every two months was immaterial. Accordingly, the tenants should have given the landlords one month’s notice, and the landlords were entitled to recover rent in lieu of notice for the period claimed.
Alex Troup (instructed by Hugh James Ford Simey, of Exeter) appeared for the appellants; the respondents did not appear and were not represented.
Sally Dobson, barrister
