What is an AST?
While all circumstances are different, you usually have an Assured Shorthold Tenancy Agreement (AST) when you rent a residential property and have exclusive use of this property. Most ASTs are in writing and will state at the beginning of the document that they are an AST.
The terms of an AST
An AST is usually for a fixed term of six or twelve months. However, there is no set period for the agreement and it is usual for an AST to continue on a periodic basis (usually monthly) after the fixed term has come to an end.
To establish how you can end an AST, you must understand the terms of the written agreement. You need to consider the terms that set out how the agreement can be brought to end, whether there is a break clause, and what the fixed term of the agreement is.
Subject to any term expressly set out in the agreement, neither party can bring the tenancy to an end during the fixed term without the other party agreeing; unless the tenant has breached the terms of the tenancy agreement. In these circumstances, the landlord may be able to serve an section 8 notice on the tenant and commence possession proceedings.
If the tenant wishes to end the agreement at the end of the fixed term, it is important that they provide the required notice to the landlord, which is usually written within the agreement. Failing to provide such notice will mean that the tenant remains liable to pay the rent and any other liabilities until the end of the notice period, unless the landlord accepts the tenant vacating the property as a surrender (see below). It may be that a Notice to Quit must be served and the requirements for this are set out below.
If the landlord wishes to end the agreement at the end of the fixed term , the landlord will also have to serve a section 21 notice on the tenant; giving the tenant two months’ notice. If the tenant does not leave, the landlord will be required to commence possession proceedings. It is a criminal offence for a landlord to evict a tenant with an AST, without first obtaining a warrant of possession from the courts.
Ending an AST by agreement
Do you want to end an AST before the end of the fixed term? Whether you are a landlord or tenant, you must ensure that the lease is properly brought to an end. Failure could see the landlord breaking the law or the tenant still being liable for payments due under the lease.
Other than the mechanisms set out above, an AST may only be ended if the tenant surrenders the lease AND the Landlord accepts the surrender. A surrender of an AST may be affected expressly or by operation of law.
An Express Surrender
Under section 52 Law of Property Act 1925, an express surrender must be made by a deed signed by all parties under the tenancy agreement. A surrender must take effect immediately. If it intends to take effect later, it will operate as an agreement to surrender on that date. It is important, when entering a surrender, that the tenant is not coerced or influenced into doing so and it is recommended that all parties, but particularly the tenant, seek independent legal advice to ensure they fully understand the rights they will be giving up when entering a surrender.
Surrender by Operation of Law
A surrender by operation of law (implied surrender) is when the conduct of the landlord and the tenant is inconsistent with the continuation of the tenancy. The conduct must demonstrate both the handing back of the property by the tenant and an acceptance by the landlord. Merely vacating the property is not sufficient. Further acts must demonstrate the surrender, such as handing the keys to the landlord and the landlord accepting the same.
It is essential that all the tenants named on the lease must surrender at the same time.
The landlord should be cautious when determining whether a tenant’s actions amount to a surrender of the lease as making the wrong decision could amount to the landlord breaching the Protection from Eviction Act, which is a criminal offence. We strongly recommend that all landlords seek legal advice in these circumstances.
Notice to Quit
A tenant may be able to serve a notice to quit to end a tenancy agreement. Whether this can be done will depend on the wording of the tenancy agreement and the timing of such notice. A notice period can vary; however, it is usually for a period of four weeks, and must be in writing. Once a notice to quit has been served, it cannot be withdrawn.
Section 196 of the Law of Property Act 1925 states that a notice to quit can be made by registered post, recorded delivery or by hand to the landlord or their agent at their last known address or place of business.
Where there are joint tenants, a notice to quit served by only one of the tenants is sufficient to end a periodic tenancy for all tenants.
Navigating your way around ending an AST should be given a lot of thought. Getting it wrong or wrongly interpreting the other parties’ actions may have profound consequences. Nockolds can give you clear guidance on what steps are available and advise you on the best way forward.