How to terminate a fixed term tenancy during the probationary period


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Guidance has been handed down as to whether 6 months’ notice is required in order to determine a fixed term tenancy during the probationary period. Livewest Homes Limited v Sarah Bamber (2018) EWHC 2425 (QB) centres around how the landlord should go about terminating this type of tenancy.

The tenant, Ms Bamber, was granted a fixed term tenancy of seven years, which included an initial 12 month probationary period. During that probationary period, a break clause could be served to terminate the tenancy.

The tenancy agreement stated:

  • 2.1 “Break clauses”: We may end the fixed term of the tenancy in the following circumstances. These are called “break clauses”.
  • 2.1.1 During the starter period, or extended starter period, we may give you two months’ written notice ending the tenancy…”
  • 2.2 Format of notices: A notice under clause 2.1 may be in any written form.

The landlord received complaints of anti-social behaviour and so a notice was served under clause 2.1.1 which also described itself as a section 21 notice. After expiry of the two month notice period, possession proceedings were commenced.

Ms Bamber defended the proceedings and argued that the notice served by the landlord meant that her tenancy was no longer a fixed term tenancy for a term certain of not less than two years. She argued that she ought to have been given six months’ notice under section 21(1B) of the Housing Act 1988 (the Act). This argument was rejected by the judge at first instance. Ms Bamber appealed to the High Court.

On appeal, it was reconfirmed that the landlord was not required to give six months’ notice under section 21(1B) of the Act.

Instead, the High Court said that serving the notice meant that Ms Bamber’s tenancy became a statutory periodic tenancy pursuant to section 5(2) of the Act. The requirements of section 21 of the Act did not apply. Ms Bamber appealed to the Court of Appeal.

The Court of Appeal held that the landlord was only required to give six months’ notice where the tenancy had come to an end by effluxion of time. In situations like Ms Bamber’s where the tenancy was being terminated early, six months’ notice was not required. Applying what would seem to be a common sense approach, it said that the purpose of giving a tenant an additional six months’ notice is to give tenants who remain in a property at the end of the fixed term the opportunity to re-house themselves.

This is a reassuring decision for landlords who would otherwise be faced with tenants being given additional protection despite contractually agreeing to early termination if certain criteria (which often include breaches of tenancy terms) were satisfied.

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