Since the Renters’ Rights Act came into force on 1st May, one question keeps cropping up:
Do existing tenants now need to give two months’ notice, or does the one-month notice clause in their old tenancy agreement still apply?
The new legislation is clear that tenants are expected to give two months’ notice when ending a tenancy.
However, many existing Assured Shorthold Tenancies contain a clause requiring only one month’s notice from the tenant.
So what happens when the tenancy agreement says one thing and the new legislation says another?
The challenge
As a general rule, statute overrides contract.
However, housing law is rarely quite that simple.
There is a long-established principle that where a contractual term is more favourable to the tenant, that term may continue to apply unless legislation expressly removes it.
This creates a genuine grey area for existing tenancies that contain a one-month tenant notice clause.
At the time of writing, there is no case law specifically addressing this point under the Renters’ Rights Act.
Our approach
At Seneca Living, we are requesting two months’ notice from tenants in line with the new legislation and government guidance.
However, if a tenant challenges this position and points to a clear one-month notice clause within their existing tenancy agreement, we prefer to take a pragmatic approach.
In the absence of any established case law, our view is that it is sensible to err on the side of the interpretation that is most favourable to the tenant.
Why?
Because somebody will eventually become the test case.
And, quite frankly, we would rather that somebody wasn’t us or one of our landlord clients.
The cost, stress and uncertainty involved in arguing a legal grey area simply isn’t worth it in most circumstances.
The practical reality
For most landlords, the difference between one month’s notice and two months’ notice is unlikely to be worth a lengthy dispute.
A smooth tenancy end, a cooperative tenant and a straightforward re-let will often produce a better outcome than fighting over a legal point that has yet to be tested in court.
The takeaway
If your existing tenancy agreements contain a one-month tenant notice clause, be aware that there is currently some uncertainty around how this interacts with the new legislation.
Our recommendation is to communicate the new two-month expectation clearly, but if challenged, carefully consider the commercial and legal risks before taking a hard-line position.
Sometimes the most professional approach is not asking, “Can I argue this?”
It’s asking, “Do I really want to become the case law?”