Common Law Tenancy - Notice Served For Minor Breach

[Sheepy11]

A close friend who is a non-native English speaker with limited knowledge of UK housing law contacted to me ask for assistance. She said that her landlord is threatening to service one month's notice because she acquired a pet dog and didn't seek consent. The tenancy agreement has a fairly standard clause that was not unfortunately adhered to:

Not to keep any animals, birds, reptiles or fish at the Premises without the prior consent of the Landlord. Consent will not be unreasonably withheld but may be withdrawn upon reasonable grounds after giving the Tenant reasonable notice.

My first take on matters was that even if the landlord went through with this, it was a fairly hollow threat as a breach of this nature for a standard AST would require 6 months notice of possession if it was served under the terms of the Section 8 of the Housing Act 1988 as amended by the Coronavirus Act 2020. However when I received a copy of the tenancy agreement I was extremely to surprised to see that it was titled as a Common Law agreement with following explicit clause which seems on the face of it to eliminate that protection:

This Agreement is outside the protection of the Housing Act 1988.

As far as I know, the tenancy fulfils none of the conditions of Schedule 1 of the Housing Act that preclude an AST i.e. the rent is not over £100,000 per annum, the landlord is not resident, it is not a commercial letting etc. In terms of substance, the tenancy agreement resembles a typical AST.

I have several questions:

Does the law, either statute or case, in any way preclude the use of a Common Law agreement in these circumstances?
Is there any way of cancelling out the alleged breach by applying for retrospective consent?
Would a court accept an argument that the breach is so trivial that it would not grant possession?


Thanks in advance

[Cinderella66]

Is the rented property the tenants only residence?

[Sheepy11]

Is the rented property the tenants only residence?

Yes. It's her sole place of residence

[Cinderella66]

They can call it what they like, but it'll still be an AST. I'm presuming the landlord doesn't live in the property. The minimum notice period at the moment is 6 months for a s21 notice.
The tenant can apologise and point out she is happy to have a professional clean incl carpets at the end of the tenancy. She can ask for retrospective permission. The landlord could apply to court for breach of the agreement on one or more of the other grounds but it is very unlikely a court would award possession particularly if she has offered a pro clean at the end.

That said, one of the problems may be that that if its a leasehold property, and if it's a flat, it will be, the headlease may prohibit pets, and there's no way round that.

Your friends problem is that a s21 notice needs no grounds providing it is outside of the fixed term, or served with an end date as the end of the fixed term. Even so she must be given 6 months notice. A s21 notice does not bring the tenancy to an end, only her surrender, or a court can do so.

[Sheepy11]

They can call it what they like, but it'll still be an AST. I'm presuming the landlord doesn't live in the property. The minimum notice period at the moment is 6 months for a s21 notice.
The tenant can apologise and point out she is happy to have a professional clean incl carpets at the end of the tenancy. She can ask for retrospective permission. The landlord could apply to court for breach of the agreement on one or more of the other grounds but it is very unlikely a court would award possession particularly if she has offered a pro clean at the end.

That said, one of the problems may be that that if its a leasehold property, and if it's a flat, it will be, the headlease may prohibit pets, and there's no way round that.

Your friends problem is that a s21 notice needs no grounds providing it is outside of the fixed term, or served with an end date as the end of the fixed term. Even so she must be given 6 months notice. A s21 notice does not bring the tenancy to an end, only her surrender, or a court can do so.

Thanks for confirming what I thought, although I was trying to avoid a leading question. My friend is not too concerned about an S8 or S21 notice as that would extend beyond the agreement term, so is largely academic as she plans to move on. What would have been a problem is being turfed out at short notice as threatened.