Notice on mouth-to-month lease

scolarda

My OH and I have leased a property continuously for the past 2 years and 2 months. The original lease was for 12 months, which obviously ran out. However, the lease had a clause that said:

On expiration of this Tenancy Agreement the tenancy may continue after the term as follows:
A. for a further fixed term, by mutual agreement
B. by the Tenant serving on the Landlord notice to claim a Part 4 Tenancy for 4 years commencing from the original Commencement Date, provided that the Tenant has been in continuous occupation for 6 months. Such notice must be received no earlier than 3 months and no later than 1 month prior to the expiry of this agreement
C. By mutual agreement, or in the absence of any formal agreement to continue after the term, the tenancy will continue as a periodic month-to-month under the original terms and conditions of this Agreement.

My question is this, as we didn't do A or B, so C applies, what notice do we have to give? Is it a month's notice (which would make sense), or is it 56 days as we've been there 2 years?

El_Duderino 09

scolarda wrote: »

My OH and I have leased a property continuously for the past 2 years and 2 months. The original lease was for 12 months, which obviously ran out. However, the lease had a clause that said:

On expiration of this Tenancy Agreement the tenancy may continue after the term as follows:
A. for a further fixed term, by mutual agreement
B. by the Tenant serving on the Landlord notice to claim a Part 4 Tenancy for 4 years commencing from the original Commencement Date, provided that the Tenant has been in continuous occupation for 6 months. Such notice must be received no earlier than 3 months and no later than 1 month prior to the expiry of this agreement
C. By mutual agreement, or in the absence of any formal agreement to continue after the term, the tenancy will continue as a periodic month-to-month under the original terms and conditions of this Agreement.

My question is this, as we didn't do A or B, so C applies, what notice do we have to give? Is it a month's notice (which would make sense), or is it 56 days as we've been there 2 years?

My last lease was rolling month to month after the term of 6 months. We had to give a full months notice as per the agreement in the 6 months. Sounds simple enough. You or the ll can end the agreement by issuing the notice agreed in the original fixed term.

cerastes

Id say its the minimum notice as required by a part 4 agreement, it seems now you have a periodic tenancy, which is after 6 months is now part 4.
It looks to me you acquired part 4 rights (and obligations) after the fixed term expired and neither you or the landlord terminated the contract.
You have to give 56 days notice from what I can see, the original contract is no longer in place (ie a fixed term).

Discuss with landlord? they may be happy to agree a shorter notice period?

scolarda

cerastes wrote: »

Id say its the minimum notice as required by a part 4 agreement, it seems now you have a periodic tenancy, which is after 6 months is now part 4.
It looks to me you acquired part 4 rights (and obligations) after the fixed term expired and neither you or the landlord terminated the contract.
You have to give 56 days notice from what I can see, the original contract is no longer in place (ie a fixed term).

Discuss with landlord? they may be happy to agree a shorter notice period?

Then what's the point of option C? Surely it's not a part 4 as it's still fixed term with a 'term' of a month? Seems a bit silly to give 3 options if the 3rd is actually the same as the 2nd?

cerastes

scolarda wrote: »

Then what's the point of option C? Surely it's not a part 4 as it's still fixed term with a 'term' of a month? Seems a bit silly to give 3 options if the 3rd is actually the same as the 2nd?

If you are happy you know, why ask?
You acquire part 4 rights automatically (and responsibilities), its a periodic agreement, doesnt say its a fixed term agreement to me, the month isnt a fixed term or at least I wouldnt view it that way.
You have by your own admission lived there for more than 2 years, means 56 days notice from what I can see.
Why dont you talk to the landlord?
It seems you want or need to get out and a shorter notice period suits you, you seem suspicious that you might have to give 56 days notice, and you're looking for confirmation that its only a month.

As for whats the point of option C? It isnt the same as option B, option B involves informing the landlord no earlier than 3 months and no later than 1 month before the end of the fixed period.
It seems to mean to me, that if no one says anything the tenancy can continue on as a periodic agreement, payment due monthly.
If the landlord wanted to end it, they could have done so if you provided no notice to continue no later than 1 month in advance of the end of the fixed term, they could assume you no longer intend to rent off them.
If you and they say nothing, then it appears you both assume you are going to follow option C?

foggy_lad

You are in a part 4 tenancy OP. Even without informing your landlord of your intention to continue on a part 4 you continued to live there so the tenancy automatically became a part 4 tenancy. What is written in the original agreement can not be used to deny you your part 4 rights.

cerastes

foggy_lad wrote: »

You are in a part 4 tenancy OP. Even without informing your landlord of your intention to continue on a part 4 you continued to live there so the tenancy automatically became a part 4 tenancy. What is written in the original agreement can not be used to deny you your part 4 rights.

The OP appears to be the one that wants to leave and does not want to comply with their part 4 obligations.
It doesnt look like this is a case of the landlord denying the tenant their part 4 rights but the tenant not complying with their part 4 obligations.

Could you clear that up OP? it is you that wants to leave, thats how it apperas in your posts.

scolarda

cerastes wrote: »

The OP appears to be the one that wants to leave and does not want to comply with their part 4 obligations.
It doesnt look like this is a case of the landlord denying the tenant their part 4 rights but the tenant not complying with their part 4 obligations.

Could you clear that up OP? it is you that wants to leave, thats how it apperas in your posts.

I do indeed want to leave. The landlord put up the rent, which I'm not willing to pay, so want to leave, and he said he's entitled to 56 days notice.

It seems I have to give 56 days notice (ouch). I was just confused by the option C, seems a strange thing to put into a lease as it's pointles really.

Thanks for all the replies.

El_Duderino 09

scolarda wrote: »

I do indeed want to leave. The landlord put up the rent, which I'm not willing to pay, so want to leave, and he said he's entitled to 56 days notice.

It seems I have to give 56 days notice (ouch). I was just confused by the option C, seems a strange thing to put into a lease as it's pointless really.

Thanks for all the replies.

Unless you have actively invoked part 4, and in the absence of any actual agreement then it does seen that you have activated option C. Option C states that you continue as per the terms of the original agreement which includes 28 day notice.

I suppose the question is whether option C can supersede Part 4. Seems most users feel Part 4 is king but you could at least try to negotiate with the LL as the lease certainly gives the impression that you chose to continue under the original terms of the agreement by not invoking Part 4.

cerastes

El_Duderino 09 wrote: »

Unless you have actively invoked part 4, and in the absence of any actual agreement then it does seen that you have activated option C. Option C states that you continue as per the terms of the original agreement which includes 28 day notice.

I suppose the question is whether option C can supersede Part 4. Seems most users feel Part 4 is king but you could at least try to negotiate with the LL as the lease certainly gives the impression that you chose to continue under the original terms of the agreement by not invoking Part 4.

Part 4 isn't king, it just is, even as a fixed term tenancy has the rights of a part 4. You dont actively invoke part 4 rights, you acquire part4 rights and protections automatically, along with that are the responsibilities and obligations.
Option C, x y or z doesnt and cannot write out any protections (or obligations), from part 4.
The original agreement was for a year, the OP as tenant has stated they have passed this original fixed term by over a year, by it appears an acceptance by both parties that they will continue the lease, this appears to be the Option C mentioned.

Although a lesser period of notice can be agreed by mutual consent, It doesnt look like there is room for negotiation as the OP said the landlord expects 56 days, if the shoe were on the other foot, its clear the tenant could require and expect their allowed notice.

The OP said
"C. By mutual agreement, or in the absence of any formal agreement to continue after the term, the tenancy will continue as a periodic month-to-monthunder the original terms and conditions of this Agreement."
Not as you have written
"Option C states that you continue as per the terms of the original agreement which includes 28 day notice."

El_Duderino 09

cerastes wrote: »

Part 4 isn't king, it just is, even as a fixed term tenancy has the rights of a part 4. You dont actively invoke part 4 rights, you acquire part4 rights and protections automatically, along with that are the responsibilities and obligations.
Option C, x y or z doesnt and cannot write out any protections (or obligations), from part 4.
The original agreement was for a year, the OP as tenant has stated they have passed this original fixed term by over a year, by it appears an acceptance by both parties that they will continue the lease, this appears to be the Option C mentioned.

Although a lesser period of notice can be agreed by mutual consent, It doesnt look like there is room for negotiation as the OP said the landlord expects 56 days, if the shoe were on the other foot, its clear the tenant could require and expect their allowed notice.

The OP said
"C. By mutual agreement, or in the absence of any formal agreement to continue after the term, the tenancy will continue as a periodic month-to-monthunder the original terms and conditions of this Agreement."
Not as you have written
"Option C states that you continue as per the terms of the original agreement which includes 28 day notice."

OH ok. So it continues month-to-month under part 4, with part 4 rights and responsibilities?

cerastes

El_Duderino 09 wrote: »

OH ok. So it continues month-to-month under part 4, with part 4 rights and responsibilities?

The OP acquired part 4 rights at some stage during their occupation automatically.
They are as bound to give the required notice as the landlord is.

Now, I'm open to improve my understanding as to when they acquired these rights, ie either immediately after the fixed term ended or 6 months after it ended. As I understand it, that its immediately after the fixed term ended as they have been in occupation for at least 6 months. To even continue residing there, technically without informing the landlord they wished to continue at least one month before the end of the fixed term, they left themselves in a situation where they may have had to vacate the property.
As the landlord said nothing, it can be assumed s/he was happy with the arrangement, but they could have expected them to leave had s/he not agreed to them staying longer.
Option C as its in their lease doesnt afford them more or less rights, it just establishes that there is an agreement and it will continue as a periodic agreement going into the future if no new agreement is agreed to or signed.

To say they have a monthly fixed term repeating every month since the end of the original year fixed term lease is incorrect. If a landlord came on and suggested that they'd be hounded for thinking a months notice was acceptable and rightly so.

month to month is as any periodic tenancy, as it is not a fixed term tenancy, a tenant can give notice at anytime provided they give the correct notice.

campingcarist

Would not section 69 of the Act be applicable or have I missed the point?

69.—(1) Subject to subsection (2), the landlord or tenant may
agree to a lesser period of notice being given than that required by
a preceding provision of this Chapter and such lesser period of notice
may be given accordingly.
(2) Such an agreement to a lesser period of notice being given
may only be entered into at, or after, the time it is indicated to the
tenant or landlord (as appropriate) by the other party that he or she
intends to terminate the tenancy.
(3) For the avoidance of doubt, a term of a lease or tenancy agree-
ment cannot constitute such an agreement.