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What To Do If The Tenant Wants To Leave

5.3 What To Do If The Tenant Wants To Leave

5.3.1 Tenant Termination of a Periodic Tenancy

A periodic tenant must provide notice in writing of their intention to
leave. The minimum notice period is 4 weeks (specified in section 5 of the
Protection from Eviction Act 1977). In most cases, the contract will specify
at least a month for a monthly rental and that notice should always expire
at the end of a rental payment period. The contract may also specify the
terms on which notice may be given, and if the terms are standard terms,
they will only be enforceable if they are fair.

In practice, tenants sometimes choose to ignore notice requirements
and will leave when convenient to them. It is often not worth the
landlord’s time or cost in attempting to chase the tenants to enforce those
requirements. Concentrate on getting the property re-let.

5.3.2 Tenant Termination of a Fixed-Term Tenancy when it Expires

There is no statutory requirement for a tenant to serve notice to end a
fixed-term tenancy at the end of that fixed term. The tenant is generally
entitled to leave without giving any notice. Any standard clause in the
tenancy agreement requiring the tenant to give formal notice to leave at
the end of the fixed term (and making the tenant liable for rent in lieu of
notice if they fail to do this) may contravene the Unfair Terms in Consumer
Contract Regulations 1999 and could be unenforceable. Only a court can
decide if any given clause is fair or not. A clause asking the tenant to inform
the landlord whether or not they will be leaving, so that arrangements can
be made for the property to be checked and the damage deposit returned
to them should not cause problems.

5.3.3 Tenant Termination of a Fixed-Term Tenancy before it Expires

If the tenant has a fixed-term tenancy but wants to terminate it before the
term expires, they can only do so legally:

• with the agreement of the landlord; or

• if early termination is allowed for by a break clause in
the tenancy agreement and the tenant has followed any                                                   requirements for giving notice specified in the tenancy
agreement; or

• in a few rare cases, if the landlord is in very serious breach of
his obligations (but the breach must be “fundamental” to the
tenancy).

If the agreement does not allow the tenant to terminate early and the
landlord has not agreed that he or she can break the agreement, the tenant
will be contractually obliged to pay the rent for the entire length of the
fixed term. If the landlord accepts the return of the tenancy, it is possible
that the tenancy comes to an end due to “surrender by operation of law”.
This occurs where the landlord and the tenant behave in a way that is
inconsistent with the continuation of the tenancy. If the tenant offers to
hand back the keys, make sure that at that stage any conditions connected
with that return are agreed, and record them in writing. For example, are
the keys only being accepted on the basis that the tenancy continues
until a new tenant signs up at the same or a higher rent? Once a landlord
accepts a surrender of the tenancy, the tenant’s liability for future rent
ends unless it has been agreed otherwise. Unlike a claim for compensation
for damage, the landlord is not under a duty to mitigate his loss if the
tenant is liable for rent. Payment of rent is a debt, and the rent is due for
as long as the tenancy continues. However, once the tenancy comes to an
end (e.g. if the landlord agrees to accept the property back) the tenant’s
liability to continue paying rent stops (but they remain liable for any
arrears that accrued up to that point).

If a tenant wants to end their fixed term tenancy early, landlords should
explain to tenants that the fixed term tenancy requires the tenant to pay
rent for the duration of the agreement. Some tenants will wish to change
their plans at that point and stay at the property until a new tenant is
found.

Landlords may then agree with the tenant that both of them will try to find
a new tenant. Landlords should ask the tenant to agree to pay reasonable
additional costs arising from the tenant’s proposed departure, such
as re-letting fees. Landlords should also inform tenants that any early
termination of the tenancy is conditional on the property being handed
back in good order, with rent paid up to the date when the new tenancy
starts. Write to the tenant setting out the conditions and ask them to write
back confirming acceptance of the conditions. In the meantime, to avoid
any inference of a surrender occurring “by operation of law”, do not do
anything that would be “inconsistent with the continuance of the tenancy”.
Do not treat the tenancy as over until the new tenancy starts.

If an agreement is not reached, a tenant may decide to abandon a property
and a landlord will have to decide if it is feasible to take any enforcement
action against the tenant. This would be by way of a small claim in the
county court.