Break Clause Query

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  • Break Clause Query

    I am the sole tenant and the following Mutual Break Clause is included in the Special or Additional Clauses section of a twelve month AST agreement dated 14 June 2017. The agreement follows on from an identical agreement dated 14 June 2016.

    "Any time after six months of the initial fixed term of this tenancy (or after a similar period following a fixed term extension to the original tenancy), the tenant may invoke this break clause by providing a minimum of two months written notice to the Landlord (such notice to expire on the last day of a rental period of the tenancy). After the same period the landlord may give the tenant two months written notice. At the end of such notice the tenancy shall end and all obligations and responsibilities shall cease; subject nevertheless to any claim by either party against the other in respect of any breach of any of the terms and conditions of the agreement."

    Also a Tenancy Illustration was provided by the agency in June 2016 prior to the original AST agreement and it states, "Break Clause: 6 months/ 2 months notice"

    I wish to execute the break, so I have served a written break notice on the Landlord during month 4, to end the tenancy at the end of month 6. The notice was received. The agency for the landlord has said they do not accept the notice and the earliest I can end the tenancy is the end of month 8. The person at the CAB agreed with my interpretation that I could end at month 6.

    I believe the Mutual Break Clause is poorly worded and ambiguous, so the Contra Proferentem rule may apply in any dispute.

    The reasoning is as follows. There are at least two different interpretations of how this clause can be operated.

    1. (6 Months PLUS 2 Months notice) – the break clause allows a break notice to be served by the tenant at any time, subject to the constraints:
    (i) the final two months of any notice period are after the first six months of the fixed term, and
    (ii) the notice period ends on the last day of a rental period.
    In this case the tenancy could end at the end of month 8, 9, 10, 11.

    2. (6 Months WITH 2 Months notice) – the break clause allows a break notice to be served by the tenant at any time, subject to the constraints:
    (i) the notice period is at least two months, and
    (ii) the notice period ends on the last day of a rental period, and
    (iii) the tenancy is not less than six months.
    In this case the tenancy could end at the end of month 6, 7, 8, 9, 10, 11.

    Any views or opinions will be appreciated.

    The property is in England, the rent is due monthly and the deposit has been handled properly.

  • #2
    Please complete & paste https://forums.landlordzone.co.uk/fo...ll-new-posters

    Comment


    • #3
      I think the agent is right.

      "Any time after six months of the initial fixed term of this tenancy (or after a similar period following a fixed term extension to the original tenancy) ... the tenant may invoke this break clause by..."

      I think that by serving notice you are invoking the clause - that seems like the most simple english reading of the words.
      The break clause can only be invoked after 6 months, not invoked before 6 months to take effect after 6 months.
      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

      Comment


      • #4
        Thanks jpkeats. But there is a conflict with your interpretation. If serving notice invokes the break clause and this must be after 6 months then you cant provide a full 2 months notice to end at month 8. The day the notice is served doesn't count, I have been told. That is why I have said interpretation #1 should be notice at any time but the final 2 months must be after 6 months to allow the 2 full months notice by end of month 8. Of course this means that notice can also be given at month 4.

        Comment


        • #5
          Originally posted by Noddy View Post
          If serving notice invokes the break clause and this must be after 6 months then you cant provide a full 2 months notice to end at month 8.
          That is correct, but unfortunately for you it doesn't cause the clause to be ambiguous or anything, it just means the earliest a break notice can take effect is end of month 9.
          I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

          Comment


          • #6
            Yes, but that's how notice works.
            There's no conflict, if you follow the logic you outline, you're right, you can't leave at the end of month 8.

            If the agent is prepared to accept your notice to leave at the end of month 8, that's their prerogative.

            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


            • #7
              or your interpretation of the clause (notice after 6 months) is wrong and notice can be given at any time allowing the clause to operate and end the tenancy at month 8 with full 2 months notice as the agent intends.

              In which case the argument becomes, to end the tenancy at month 8 you must be able to give notice before the end of month 6. If you can give notice before the end of month 6, then you can give notice at month 4 to end the tenancy at month 6.
              Last edited by Noddy; 13-10-2017, 13:59 PM. Reason: expanding the argument

              Comment


              • #8
                A landlord (or agent acting on their behalf) is free to accept short notices. The agent's statement that the tenant can serve notice to end month 8 is not by itself inconsistent with insistence that notice may only be served after 6 months.
                I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                Comment


                • #9
                  Originally posted by Noddy View Post
                  or your interpretation of the clause (notice after 6 months) is wrong and notice can be given at any time allowing the clause to operate and end the tenancy at month 8 with full 2 months notice as the agent intends.
                  Obviously I can be wrong.
                  I don't think I am, because the words do say what they say.

                  I have no skin in the game and have answered as I see it, based on exactly what you have posted.
                  So I might be wrong, but I'm not biased, and, if I agreed with you, I'd have happily said so.

                  The practical upshot doesn't change - the agent believes the clause says the same thing as I do, and will only allow you to give notice to expire at the end of month 8.

                  You have three choices - agree with them, get a solicitor to see if they'll dispute the interpretation with the agent (they may be prepared to do that if they think it's even slightly possible that the notice isn't crystal clear) or move out when you want to and see if the agent is prepared to fight for their interpretation with the deposit protection company and/or a court.


                  When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                  Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                  Comment


                  • #10
                    It seems fairly clear to me that you can only give notice after 6 months has expired. Although it does not seem to be what was intended, the drafting makes it impossible to give two months notice to end at 8 months. JP's three choices seem about right.
                    Assume I know nothing.

                    Comment


                    • #11
                      Thank you everyone for the insights. It does seem there are three choices. One thing I am wondering. If the break clause can't be operated for the agents end date and it can't be operated for my end date, what's the difference. Why should month 8 be allowed but month 6 not allowed.

                      Comment


                      • #12
                        The landlord and the tenant are always free to come to a new agreement notwithstanding any previous new agreements between the two. If you want to leave tomorrow say, and the landlord agrees, your tenancy can end tomorrow. Your existing contract terms is what you two previously agreed on, and it allows one side to uniliterally serve notice to end the fixed term early without the other side's further consent. So, you can break after 6 month [and before 7th] to end month 9 say, and the landlord cannot refuse.
                        I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                        Comment

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