Q: I am due to sign a new tenancy agreement for the flat in which I have lived for nearly three years. I have previously signed a tenancy for a year, with a break clause at six months. As I am looking to buy a property, I would like to establish a more flexible arrangement. I have been a good tenant, so was surprised when the agents said that the best they could offer was a similar tenancy to the one I currently have. Is this true?

A: There is no legal reason why the agents can’t grant you more flexible terms – but that does not mean they will want to. One option is to do nothing. After the end of your current agreement, you don’t automatically lose your right to remain in the flat. The tenancy simply continues as a “periodic tenancy” until the landlord ends it by serving formal notice under section 21 of the Housing Act 1988. Since this must give at least two months’ notice to quit, you may well be able to stay long enough to move to your new home.

If you want to negotiate a longer arrangement, a new or replacement assured shorthold tenancy will tend to be for at least six months.

This is because under the Act the landlord can’t obtain a court order to recover possession until six months after the tenancy begins. However, there is nothing in the legislation to stop both parties negotiating a longer or shorter period.

If you do agree a new tenancy, the parties can also include a break clause allowing the tenant to bring the tenancy to an end early — but you can’t insist on one.

If you agree another one-year tenancy without a break clause, you won’t simply be able to leave part of the way through the new agreement. You will be liable for all the rent for the whole of the tenancy, even if you try to hand back the keys and move out of the flat. The tenancy can be “surrendered” part way through – but this requires the agreement of the landlord and the landlord will often insist that you pay a “reverse premium” for the right to do this. A surrender may be written or implied from some act that clearly accepts the old tenancy is at an end — such as reletting to another tenant.

Mark Loveday is a barrister at Tanfield Chambers (020-7421 5300).

E-mail questions to property.consumer@thetimes.co.uk

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