The landlord granted an assured shorthold tenancy for six months fixed at andpound;390 ‘per calendar month payable every two months in advance’. Clause 5 allowed the tenant to terminate the agreement with ‘at least one month’s written notice’. The tenant left, putting the keys through the landlord’s letterbox. The landlord claimed the arrears of rent, the cost of putting right some damage done to the property and four weeks’ rent in lieu of notice (not a full calendar month’s rent). The claim for rent in lieu of notice was dismissed. The landlord appealed.
Held: The appeal succeeded. The court discussed how the tenancy might be determined. Because of section 5(3)(e) the term in clause 5 allowing the tenant to bring the agreement to an end by giving a month’s notice could not have effect while the agreement remained an assured tenancy. For the tenant to terminate, the length of the notice to quit was to be ‘equal to at least a period of the tenancy and expiring at the end of the period of the tenancy’. That brought section 5(3)(d) into play.
Kennedy LJ said: ‘The periods of the tenancy are defined by section 5(3)(d) as being those ‘for which rent was last payable under the fixed term tenancy’. Stressing the words ‘for which’, it seems to me that the periods were calendar months because the rent was fixed at andpound;390 per calendar month. The fact that it was payable every two months in advance was only a provision as to time of payment which, for present purposes, is not material.’ The judge had erred: ‘In the present case the judge, having rightly concluded that the landlord could not rely on clause 5 of the tenancy agreement, seems to have overlooked the tenant’s obligation to serve notice to quit if he wishes unilaterally to determine a periodic tenancy, an obligation which is not ousted by any statutory provision in the Housing Act 1988.
Of course, a tenant does not have to give notice if his landlord agrees to accept with immediate effect the tenant’s offer to surrender his statutory periodic tenancy, and if the tenant delivers back to the landlord the keys of the dwelling house which was the subject matter of the tenancy; that, dependent on the circumstance, may amount to an offer to surrender which the landlord is then free to accept or reject.’
As to the return of the keys: ‘The dropping-in of the keys cannot have constituted more than an offer to surrender which the landlords were free to accept or reject. It seems clear that there was no express acceptance of the offer so as to terminate the tenancy with immediate effect. The landlords seem to have regarded the dropping-in of the keys as informal notice to quit or an offer to terminate. They seem to have agreed to terminate the tenancy at the end of the minimum period for which a proper notice could have been given (see the contents of the amended particulars of claim). So long as neither they nor the tenant did anything which could be said to have altered the position during the ensuing four weeks and the evidence, so far as it goes, does not suggest that there was any relevant development during that period, I see no reason why the court should not now regard the tenancy as having terminated by agreement when the landlords agreed that it would terminate, namely four weeks after they received the keys. The result is that they are, as claimed, entitled to recover rent for that four-week period which is the issue in this appeal.’
Judges:
Kennedy LJ, David Steel J
Citations:
(2000) 33 HLR 397, (2000) 80 P and CR D44, [2001] L and TR 8, [2000] EWCA Civ 5562, (2001) 33 HLR 36
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Javad v Aqil CA 15-May-1990
P in possession – tenancy at will Until Completion
A prospective tenant was allowed into possession and then made periodic payments of rent while negotiations proceeded on the terms of a lease to be granted to him. The negotiations broke down.
Held: The tenant’s appeal failed. It was inferred . .
Cited by:
Cited – Church Commissioners for England v Meya CA 21-Jun-2006
The commissioners let a flat to the tenant on an assured shorthold tenancy for a year less one day with the rent payable quarterly. The tenancy continued as a statutory periodic tenancy. The court was asked whether the statutory tenancy was an . .
Lists of cited by and citing cases may be incomplete.
Housing
Updated: 06 July 2022; Ref: scu.242681