Leases and Notice Periods
Landlords and Tenants
A Landlord is the person who owns a property which they allow other people to live in or occupy usually upon payment of rent. A lessor is the person who is entering into a lease agreement with someone to let property.
The landlord is often the lessor as well but sometimes a company owns a property or a landlord may have a management company to look after their properties and a lease may be in the company or management company’s name.
A tenant or lessee is the name given to someone who has an agreement to live in a property owned by someone. They enter into an agreement or lease with a landlord or lessor to comply with the conditions in the lease in order to have the property.
A lessor signs the lease but some people will be subtenants or sublessees if their names are not on the lease but they live in the property because the tenant lets them and they have to obey the conditions of the lease as well. Subtenants or sublessees are not protected by the Residential Tenancy Law if they share kitchen or bathroom facilities with other occupiers.
A tenant can sometimes assign a lease. In this case, the lease is no longer their responsibility.
Terms and conditions of a lease
The terms and conditions of a lease explain the things a tenant and landlord must do or obey while the tenant occupies the premises.
The terms will cover things like:
- the rent
- how long the lease (its term)
- payment for any rates, parking or utilities
- not making a noise
- peaceable enjoyment
The term of a lease is also the word used to describe how long the lease will last for e.g. a term of one year.
Residential Tenancy (Jersey) Law 2011 (the ‘RTL’)
Loi (1946) concernant l’expulsion des locataires réfractaires (‘the 1946 Law’)
These two laws regulate the relationship between landlords and tenants. The 1946 law is much shorter than the RTL and does not have the same detail or protections for landlords or tenants.
The RTL was introduced to update the way agreements between landlords and tenants work and to make the processes and the law easier to understand. The law came into force on 1st May 2013 for:
- every new lease
- any lease that existed before July 2013 and is subsequently varied or renewed
- any lease which offers accommodation that fits in the definition of self-contained
As the years go by more and more residential rental accommodation is falling under the RTL.
A lease that falls under the rules of the RTL is called a residential tenancy agreement. There are clear rules about what terms must be included. The full law can be found here.
More detail about the requirements of the law and how it works can be found on Residential Tenancy (Jersey) Law 2011 / Agreements/ Regulations and Orders/ Condition Report
To know more about tenant and landlord rights see here
If the lease is not one that is covered by the RTL it is likely that the rules in the 1946 Law will apply.
These rules deal mostly with notice periods and eviction procedures.
Type of Lease
There are 3 types of leases in Jersey:
A periodic tenancy is one that keeps running or continuing until notice is served, so long as the rent is paid every period. The period is calculated by when the rent is paid. For example, if rent is paid every month it is a monthly periodic tenancy. If rent is paid every three months it is a quarterly periodic tenancy.
A fixed term tenancy is created when the landlord and tenant sign a lease that has a statement or term in it which says how long the lease is going to last for. This is the fixed term. The terms of a fixed term tenancy may or may not have a term that allows the tenant to ask for a renewal of the lease.
Any lease that does not include a term is automatically a periodic tenancy.
A contract lease is a lease over property that has a length of 9 years or more agreed at the start of the lease. A contract lease needs to be presented to the Royal Court so that the details of it can be recorded in the Public Registry. Stamp duty must be paid by the tenant based upon the rent charged for the property.
What is needed for a Tenancy to exist :
A tenancy exists only if the accommodation is self-contained and if the following five points are satisfied:
- The occupier has exclusive use of the accommodation i.e. landlords cannot have unrestricted access. Landlords cannot enter without reasonable notice
- There is a fixed rental payment term i.e. weekly, monthly payments
- Payment is made to the landlord
- The prospective tenant will have to prove residential status
Self-contained accommodation must contain a bath or shower, a washbasin, a kitchen or kitchenette, a place to sleep and a toilet for the exclusive use of the tenant. If the occupier shares kitchen or bathroom facilities with anyone else, they are not a tenant and not protected by the RTL.
There is a common law duty on a landlord to keep their premises in a fit or good condition.
Landlord responsible for repairs
Before carrying out any work, the landlord should give prior reasonable notice to the tenant. The landlord should not force his way into the property to do the work.
If the landlord fails to maintain the property according to the terms of the lease, the tenant could ask Environmental Health to order repairs to be done.
Anyone who wants to know more about this should speak to an Environmental Health Officer who has powers to act under the public health law.
The RTL has terms which deal with the condition of property that is let and the responsibilities of landlords and tenants.
Tenant responsible for repairs
Aa landlord can pass responsibility for doing repairs to the property to the tenant. This happens if there is a term in the lease that says the tenant is responsible. A lease that has a term like this is called a full repairing lease. It is also possible to have a lease that gives the tenant responsibility for doing only some of the repairs, called a partial repairing lease. If a lease does not include such a term, the landlord is responsible or all or other repairs.
If a tenant with a full or partial repairing lease does not do any necessary repairs, the landlord can give notice to rectify a breach of the lease.
Renewal of a lease
A renewal of a lease is the name given to a lease which has finished but which the landlord and tenant agree to continue or start again. The landlord and tenant agree to continue the lease for another term so it is renewed.
If a lease has a clause about renewal in it, the landlord and tenant can discuss renewal before the current lease runs out. If there is no renewal clause it goof practice for parties to discuss their intentions well in advance of the lease ending. If parties do not agree to renew, the lease ends on expiry of its terms. If parties do not agree but the tenant remains in the property and the landlord continues to accept rent, a periodic tenancy is created. If a tenant remains in the property but the landlord had asked them to or assumed they would vacate, the landlord should not accept rent payments and apply to the Petty Debt Court for an eviction.
A landlord may charge a tenant a fee for supplying a new lease if the fee is reasonable and stated in the terms of the lease. A landlord cannot charge fees that have not previously been disclosed as this is material information the tenant needs to be able to make an informed choice about accepting the terms.
The details of the length of the lease and the amount and method of payment of rent are normally contained within a written lease.
Rent reviews may take place either at intervals during the course of a lease or at renewal. Reviews may be linked to inflation by reference to the Retail Price Index or RPI. If a term of the lease states it can be increased by RPI, it cannot be increased by more or less than the RPI without both parties’ agreement.
Cost of a lease
The landlord is entitled to pass on to the tenant the cost of having a lease prepared and written up. This cost must be disclosed to the tenant before they accept the lease as this is material information.
A contract lease will include legal fees and stamp duties. Anyone considering assigning a contract lease is advised to get legal advice about the cost.
Some leases include a clause allowing the tenant to transfer the lease to another tenant. This is called an assignment or re-assignment.
If there is no mention of being able to assign the lease, an assignment is still possible with the landlord’s permission.
If there is an assignment clause it means that the tenant can leave the premises before the end of the lease without giving notice to end the tenancy, so long as they have found someone to take on the lease. Assignments can be acceptable to a landlord because the new tenant has taken on the responsibilities of the lease and the landlord does not have to look for a new tenant when the lease expires or lose any rent.
Sometimes an assignment clause will say that the new tenant must be acceptable to the landlord. The landlord may have requirements but permission should not be unreasonably withheld.
Unless a new tenant has been accepted by the landlord and their name put on the lease, the existing tenant remains responsible for the payment of rent until the end of the lease.
A tenant who is assigning a lease should try to get written confirmation from the landlord that
- the lease has been assigned and that the new tenant’s name is on the lease
- any money that the tenant owed e.g. for rent has been fully paid
- the landlord is not going to claim for a breach of the lease and releases the tenant from their obligations
- keys have been returned
A tenant should also make sure that any utility or service bills in their name are paid up to the date when they leave the property and that the utility or service provider removes the tenant’s name from the account.
When leases end
There are several ways a lease can end:
- because its term is over
- because notice has been given
- following a Court Order because of a breach of the conditions by the landlord or tenant
If a tenant wants to break a lease they must check whether:
- the lease can be assigned
- whether a period of notice could be given
- whether the landlord may accept a payment as compensation for breaking the lease
- whether they can apply to the Petty Debts Court for the lease to be ended because of a failure by the landlord to meet certain terms
If none of these things are mentioned in the lease, it is still possible to end it by re-assigned or giving notice with the landlord’s permission. Landlords should not unreasonably withhold permission. Otherwise, the tenant will be responsible for the lease and all the terms, including paying rent.
If a Landlord wants to have a lease cancelled they should consider whether any of the conditions mentioned in the lease have been broken.
It is essential that the correct procedure is followed to end a lease.
Notice to end or terminate a lease
The RTL introduced statutory notice periods for anyone with a periodic tenancy. These notice periods must be given:
- a landlord must give a tenant a minimum of three months’ notice
- a tenant must give a landlord a minimum of one month’s notice
If a lease is periodic, it cannot state that more or less notice must be given by either party. A periodic lease cannot override the law, so even if more or less notice is stated in a lease that is or becomes periodic, these notice periods still apply.
Fixed term leases
No notice is required from either party when a fixed term lease comes to an end. A fixed term lease is assumed to be ending unless parties agree otherwise. It is advisable for both parties to communicate their intentions well in advance of the lease ending.
As the notice periods in the RTL only apply to periodic tenancies, fixed term tenancies can state more or less notice, however if the notice differs from the above, they should still be reasonable. The above notice periods were considered reasonable when creating the law. A tenant can apply to the Petty Debts Court to formally vary the terms of a lease if they believe the lease they have signed is unreasonable.
Any lease can be ended sooner if both parties agree. Agreement should be put in writing.
Notice under the 1946 Law
If the lease is under the 1946 Law the landlord must give one month’s notice.
If a landlord gives suitable notice to end a lease to a tenant under the 1946 law but the tenant has failed to leave the property, the landlord may apply to the court to get an eviction order.
Going to court to end a lease and eviction
For practical advice for landlords and tenants, please see Eviction Proceedings.
Before the Court makes an order for eviction of the tenant and re-possession of the property by the landlord, it will take various things into consideration about the needs and circumstances of both parties.
Both the RTL and the 1946 law have rules about how an eviction and re-possession of a property by a landlord will take place.
It is therefore important to consider whether a lease is for residential accommodation which falls under the RTL or whether it is a lease under the 1946 Law.
Under either law, an action will start in the Petty Debts Court if the value of the annual rent for the property each year is less than £30,000. If the value is more than £30,000 the matter will be heard in the Royal Court.
If an Order for Eviction is made it is sent to the Viscount’s Department. The Viscount’s Officers have authority to go to the property and take possession of it. They also have powers to remove any belongings left by the tenant.
Article 13 of the RTL for details of the rules about how an eviction order takes place if the lease is one under the RTL:
Article 4 of the Loi 1946 if the Eviction Order is made for a lease under the 1946 Law
If the Court delays making an eviction order and the tenant stays in the property the tenant would normally be required to pay for a new tenancy agreement to be created.
Additional reasons a tenant can apply to the Petty Debts Court
If a case falls under the RTL, there are a number of reasons why a tenant can bring an action against a landlord to ask the Court to end the lease.
- if a landlord has not complied with their obligations
- if a landlord has breached the contract
- if the conditions become uninhabitable
See: Articles 8 and 9
A landlord can only bring an action for failure to quit the property and for eviction under the RTL
- after notice has been served
- for breach of contract
See: Articles 11 and 12
There is no other way a landlord can break a lease unless the tenant is willing to agree to accept a period of notice for the ending of the tenancy.
Other reasons why a tenancy can end
- Property ownership/or leasehold changes
- Landlord has ‘life enjoyment’ of a property
- Sale of a property
Property ownership changes
If the property ownership changes, the new owner must honour the terms of the previous lease and provide a new lease with the same terms. This is a variation.
Where a sub-tenant holds a lease from a tenant whose own lease expires, the sub-tenant becomes the tenant of the landlord, and is known as a locataire réfractaire. A tenant actually has no legal right to offer a lease to a sub-tenant for a longer period than their own lease.
Landlord has life enjoyment of a property
Life enjoyment of a property is when you do not own a property but are allowed to live in it for as long as you live. Such a person is called a usufructuary.
If the landlord has life enjoyment and dies the tenant becomes the tenant of the person who inherits the property. This person is called the reversioner.
Dégrèvement is when banks or businesses apply to take over ownership of a property or a piece of land that is owned by a person or business who is unable to pay their mortgage. For more detail see here.
If there is a dégrèvement and ownership of the property passes to another person, the tenant with a lawful lease becomes the locataire réfractaire of the new owners, who must honour the terms of the lease.
Sale of a property
Where a property has been sold, provided the lease is mentioned in the contract of sale or there is a contract lease, the new purchaser is obliged to allow the existing tenant to stay in the property. The terms of the existing lease must continue.
Ending a lease and starting a new one
If the same landlord and same tenant are ending a lease and starting a completely new one, there is no need for the deposit to be released from MyDeposits and re-lodged. The new lease should acknowledge the existing deposit.
If there is a change of landlord, the deposit should be released and re-lodged with the new landlord’s details.
If there is a change of tenant, the deposit should be released and re-lodged with the new tenant’s details.