Tenant only gave 5 days notice

It all boils down to the exact agreement, ie. the exact wording of the tenancy agreement.

If it just states that a tenancy is granted for a fixed term of x months, as it usually does, then there is a fixed term tenancy.
This means that the tenancy ends at the expiry of the term, and that the tenant needs not give notice.

This is the standard case, which gives rise to a statutory periodic AST if the tenant decides to stay on.

However, the agreement might be worded e.g. as creating a tenancy starting with a fixed term of x months and _continuing_ periodically thereafter.
In such case there is a single tenancy, which does not end at the expiry of the fixed term.
If the tenant wishes to leave at the end of the fixed term period, he must give notice as specified in the agreement, if the agreement allows him at all to do that.

Correct Romain and version 2 if it is a contractual periodic has the immense advantage of removing any doubt about whether to re-serve PI (not that there should be any such doubt) as if it is a single tenancy the original PI suffices.

Reply to the comment left by "Romain " at "12/04/2014 - 16:51":

seems like we are straying into Superstrike vs Rodriguez territory here, when an AST turns into a SPT it becomes a new contract and as such the deposit needs to be re-protected and PI issued.

another good reason to talk it through and part amicably if at all possible.

Reply to the comment left by "Romain " at "12/04/2014 - 16:51":

That is an interesting take. I had been in agreement with Mark up until your post.

Can you give a wording that can be included in a tenancy agreement to require 1 month's notice by the tenant in all cases?

Reply to the comment left by "MdeB " at "12/04/2014 - 19:31":

I said basically the same thing as Mark did: In a fixed term tenancy the tenant can leave at the end of the tenancy without giving notice and there is nothing you can do to prevent that,

I wanted to point out that there is a difference between a fixed term tenancy and a tenancy starting with a fixed term.

Yes you can have a clause requiring a month's notice to be given by the tenant if they intend leaving at the end of the initial fixed term. The OFT used to hate it saying the 88 Act did not say you could and therefore you couldn't. The counter argument of course was it didn't say you couldn't so therefore you could.

The company I used to work for had such a clause and it was challenged as it's objective (pre TDP of course) was to enable a Landlord to retain the deposit in lieu of such notice if the tenant suddenly left, either at end of fixed term or indeed in the periodic state. Then Lane v Cadwallader confirmed the Landlord could demand the notice in the prriodic state.

My company had to abandon the clause as it was threatened by the OFT with an injunction. But another fought the OFT to a standstill and have it in their agreement, which also then goes contractual periodic after the initial fixed term.

So yes you can have such a clause, but whether or not it gets objected to if enforced is another issue. The problem of course is the tenant can object to it now by way of a free SDR dispute, and the Schemes have been slow to understand the agreement and that the clause is legal and that the Landlord is entitled to the deposit if the notice was not given and they suffer a void loss.

That thankfully no though is also changing, as is the OFT attitude.

Incidentally you cannot have longer than a month's notice if it is a monthly payment period.

What is be the effect of such notice?

As said, clearly if the tenancy is a fixed term tenancy then such notice has no effect to end the tenancy. Thus it could not be used at all to enforce rent in lieu or other penalties.

Even the argument that not giving notice is a breach of contract and thus the landlord could claim for his loss would not go far, IMHO for the reason above: it is a fixed term tenancy.

Therefore, I think that such clause is pretty useless apart from telling a tenant "it's in the contract". Sometimes it works.

I have to eat Humble Pie. I have looked into this further and Mark and others are apparantly right - that the tenant does not have to give notice if they leave on or just before the last day of the Fixed Term. Shocking I know and I don't think it is fair on the landlord!

From my further reading - It is understood that - At the end of a residential fixed-term tenancy the tenancy ends on the last day and providing the tenant leaves before or on the last day of the tenancy, it is possible for the tenant to leave without giving any notice as no notice is required under the Housing Acts.

However, notice will be required once the tenancy becomes a periodic tenancy.

Perhaps a separate clause in the tenancy would be helpful in trying to encourage tenants to give 1 months notice before the end of the fixed term even though it may not be legally binding or enforceable as sugested by others above.

Anyway, I hope my comments helped to open up the conversation further and I hope I did not offend anyone.

*Am I allowed to post a link here to another public site for further reading for those who may be interested in this topic. *Moderator please delete this sentence if it is inappropriate.

Reply to the comment left by "Koysar Ali" at "12/04/2014 - 23:06":

Very noble of you and yes you can post links providing they are not self promotional.
.

Romain I just cannot see the point you are trying to make and I certainly do not understand your second sentence.

Remember if the tenant gives the notice (as required contractually under the agreement) and then does not leave section 18 of The Distress for Rent Act 1737 comes into play and double rent can be demanded.