Lease termination with concurrent fixed term and part 4 tenancy

Thephantomsmask

Hi,

I am hoping someone may be able to clarify something for me as information online seems to always refer to the two separately.

If a fixed term lease ends on date x and the tenants have a part 4 tenancy, can the landlord issue notice to terminate due to sell (section 34) to end the tenancy on date x or must the notice period begin on the day after the fixed term lease ends?

Thanks!

dudara

Edit - appears I was incorrect, see replies below

The landlord can issue the termination notice so that the end date falls on or after the fixed term end date. AFAIK, you not have to wait for the lease to expire before issuing notice.

Claw Hammer

dudara wrote: »

The landlord can issue the termination notice so that the end date falls on or after the fixed term end date. AFAIK, you not have to wait for the lease to expire before issuing notice.

That is not what the RTB say. Some adjudicators hold that a notice cannot be issued during the fixed term.

dudara

^Interesting, I don’t see why it couldn’t be served during the lease. Any grounds for that train of thought?

Thephantomsmask

Thank you for the replies. It seems to be a grey area, I have found several mentions of section 34 termination reasons not being allowed to be used during a fixed term lease, ergo some rulings that the notice must commence after the fixed term, but there seems to be no concrete guidelines. I guess the thought may be that a fixed term can only add to part 4 rights and not detract from them.

4ensic15

Thephantomsmask wrote: »

Thank you for the replies. It seems to be a grey area, I have found several mentions of section 34 termination reasons not being allowed to be used during a fixed term lease, ergo some rulings that the notice must commence after the fixed term, but there seems to be no concrete guidelines. I guess the thought may be that a fixed term can only add to part 4 rights and not detract from them.

RESIDENTIAL TENANCIES ACT 2004
58.—(1) From the relevant date, a tenancy of a dwelling may not be terminated by the landlord or the tenant by means of a notice of forfeiture, a re-entry or any other process or procedure not provided by this Part.

(2) Accordingly, the termination by the landlord or the tenant of—

(a) more beneficial rights referred to in section 26 that the tenant enjoys under a tenancy than those created by Part 4, or

(b) a tenancy to which section 25 applies,

must be effected by means of a notice of termination that complies with this Part.

(3) Each of the following—

(a) a tenancy referred to in subsection (2)(a) (unless it expressly excludes this means of termination),

(b) a tenancy referred to in subsection (2)(b), and

(c) a tenancy of a dwelling created before or after the relevant date in so far as its operation is not affected by Part 4,

shall be construed as including a term enabling its termination by means of a notice of termination that complies with this Part (but, in the case of a tenancy that is for a fixed period, unless it provides otherwise, only where there has been a failure by the party in relation to whom the notice is served to comply with any obligations of the tenancy).





The last part of Section 58 is taken to prevent the service of a notice of termination in the case of a fixed tenancy unless there has been a breach of condition.

Graham

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Thephantomsmask

Thank you for linking the statute 4ensic15, much appreciated. It is a pity that none of the websites, rtb, threshold etc, that put these into layman's terms actually cover this point directly as it must be a common issue.

4ensic15

Thephantomsmask wrote: »

Thank you for linking the statute 4ensic15, much appreciated. It is a pity that none of the websites, rtb, threshold etc, that put these into layman's terms actually cover this point directly as it must be a common issue.

These websites are full of FAQs compiled in the early days of the PRTB.Many were compiled before the series of decisions on the point at hearings. They are all tenant-oriented. Many a landlord has lost a case over this and has been forced to wait for months longer to terminate a lease.