Lease expired, contract has month by month extension clause

joostl

Hi All,

I have been living in my apartment for the past 2years and 1month. We would like to move out by the middle of June due to one of the occupants moving abroad.

In the lease there is a clause saying if after the fixed term, no new agreement is signed the lease silenty extended on a month per month basis. Would this clause allows us to move out in 5-6 weeks instead of the required 2months notice we would have according to part4?

Thanks,

Joost

djimi

You would probably need to clarify that with the landlord/agent.

D3PO

month to month = part 4. No harm asking your landlord but legally they could insist on the notice period associated with your part 4 tenure.

djimi

It depends on how it is worded I would have thought. If the wording was such that implied a rolling one month fixed term then I dont see how part 4 would come into play. Without seeing the lease though Im only speculating; the best person to answer the question is the landlord.

odds_on

djimi wrote: »

It depends on how it is worded I would have thought. If the wording was such that implied a rolling one month fixed term then I dont see how part 4 would come into play. Without seeing the lease though Im only speculating; the best person to answer the question is the landlord.

It doesn't matter how the lease is worded - statutory Notice period cannot be altered in a lease agreement.

However, by mutual agreement between landlord and tenant, the notice period (in this case 56 days) may be made shorter at the time of or just after the Notice of Termination which must be in writing.

belcampprisoner

http://www.citizensinformation.ie/en/housing/renting_a_home/types_of_tenancy.html

djimi

odds_on wrote: »

It doesn't matter how the lease is worded - statutory Notice period cannot be altered in a lease agreement.

However, by mutual agreement between landlord and tenant, the notice period (in this case 56 days) may be made shorter at the time of or just after the Notice of Termination which must be in writing.

In this case it would only be altered for the notice to be given by tenant. The landlord would still have to give the same notice regardless, but if the tenant was granted a rolling one month fixed term lease then they would not be bound by the notice period that they must give to vacate as set out in a part 4 tenancy.

Its most likely immaterial either way, as its unlikely that a monthly rolling fixed term has been agreed, and the lease is most likely referring to a part 4 tenancy.

joostl

5. On expiration of this tenancy agreement the tenancy may continue after the term as follows:
-for a further fixed term by mutual agreement
-by the tenant seeing on the landlord notice to claim a part 4 tenancy for 4 years commencing from original commencement date provides that the tenant has been in continuous occupation for 6 months. Such notice must be received no earlier than 3 months and no later than 1 month prior to the expiry of this agreement.
-in the abscence of any formal agreement to continue after the term, the tenancy will continue as a periodic month-to-month under the original terms and conditions of the agreement.


The last option applies to us. What would our notice be?

D3PO

joostl wrote: »

5. On expiration of this tenancy agreement the tenancy may continue after the term as follows:
-for a further fixed term by mutual agreement
-by the tenant seeing on the landlord notice to claim a part 4 tenancy for 4 years commencing from original commencement date provides that the tenant has been in continuous occupation for 6 months. Such notice must be received no earlier than 3 months and no later than 1 month prior to the expiry of this agreement.
-in the abscence of any formal agreement to continue after the term, the tenancy will continue as a periodic month-to-month under the original terms and conditions of the agreement.


The last option applies to us. What would our notice be?

then your notice is as per the original terms of your lease.

djimi

The way that its worded suggests to me that you have moved onto a part 4 tenancy, and would have to give notice in accordance with same. I really am just guessing though; you need to clarify with your landlord first as to what they mean by that, and then seek further assistance if you are unsure about their intentions.

Just to clarify one thing for you though; on the point of a part 4 tenancy, you automatically acquire these rights after 6 months in the tenancy, regardless of you being on a fixed term lease or not. This is not something that you have to apply for with the landlord, nor is it something that they can refuse. What they have alluded to in the second point is that you must make it known to them between three and one month before you lease expires if you intend to move onto a part 4 tenancy, as you could be held liable for any costs that they have incurred while under the assumption that you were going to vacate at the end of the fixed term (readvertising costs are realistically all it really means). It in no way changes anything regarding your rights to acquire part 4 tenancy rights. Be it intentionally or otherwise, that clause in your lease is quite misleading.

Mrs OBumble

OP, are you looking for a legal answer?

Since you want to leave anyway, probably the answer that matters is what notice your landlord thinks you have to give - if you can come to a mutual agreement then the law is very sweet, but unlikely to be enforced (unless the landlord is a psycho who agrees to one thing, then sues you for another).

valleyoftheunos

djimi wrote: »

It depends on how it is worded I would have thought. If the wording was such that implied a rolling one month fixed term then I dont see how part 4 would come into play. Without seeing the lease though Im only speculating; the best person to answer the question is the landlord.

there is no such thing as a "rolling fixed term lease" a lease is either fixed or periodic, it can't be both. I'd suggest that what we have here is periodic.

In practical terms if the OP want's to move in June the should give notice immediately and try to agree as short a notice period as possible.

joostl

had a chat with my landlord, one month notice is all he wanted. Thanks all