Break Clause notice period

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

    Break Clause notice period

    I have had the same tenant in my property in England for 17 months. After 12 months we renewed the tenancy with a new contract.

    I am now in a position where I need to move back in to the property. We have a six month break clause which states

    "The landlord may bring the tenancy to an end at any time AFTER the first six months of the period of letting by giving the tenant not less than two months' written notice stating that the Landlord requires possession of the accommodation"

    I had read this to mean that the tenancy could be ended at day one of month seven and I could move back in, provided that notice was given in month 4. However, my letting agent is refusing to serve notice as they say this clause refers to when notice can be issued, thus I cannot give notice until month six to take possession in month 8.

    Can anyone shed any light on this. I have another property I rent with a different agent and their break clause is explicit that notice can be given at month 4 for repossession at month 6, but this one is much more ambiguous.

    Thank you.

    #2
    (Assuming you're on a 12 months fixed term AST from your description.)

    1. As you say, from a normal person reading point of view it's ambiguous. An ambiguous clause is read against the party which wanted it included in favour of the other party, so probably 6 for 8 unless there's a definite legal precedence for it to be read a certain way here.

    2. The letting agent is supposed to act on your instruction. If they won't do what you say, why are they still your agent?

    3. You're the landlord, not the agent (assuming that's actually the case and we're not on some let-to-let thing here). You can issue the notice to the tenant yourself.

    4. If that's the entirety of the break available in the contract, i.e. there's no tenant equivalent, it's actually highly likely to be deemed unfair under consumer laws if challenged in court and thus unenforceable.

    5. Even if you end the fixed term with a [valid] break, the tenancy will still have a tenancy if they don't leave. You will have to serve a 2 months s21 notice, possibly at the same time as the break notice, and then go to court over several months for possession.
    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


      #3
      The tenant does have an equivalent clause. It states

      "The tenant may terminate this agreement at any time after the first six months of the tenancy by giving to the landlord or his agent two months notice in writing and upon the expiry of which the tenancy will determine absolutely. Any such determination pursuant to the provisions of this clause shall be without prejudice to the claim of either party against the other in respect of any antecedent breach or non-observance of the provisions of this agreement and should one or more tenant wish to exercise the break clause a section 21 1(B) Housing Act 1988 notice will be issued which will determine absolutely the tenancy."

      Comment


        #4
        Originally posted by JennyP View Post
        The tenant does have an equivalent clause. It states

        ".... and should one or more tenant wish to exercise the break clause a section 21 1(B) Housing Act 1988 notice will be issued which will determine absolutely the tenancy."
        Err.... what? Who drafted this car clash?

        Section 21 notice is a notice by the landlord telling the tenant that the landlord require possession. On its expiry, the landlord may issue a claim for possession in court. Why on earth is s21 being talked about in a section supposedly giving a tenant the ability to break?
        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


          #5
          Possibly due to Aylward v Fawaz 1997 which found that an s21 was valid in executing a break clause: See
          http://www.landlordlawblog.co.uk/201...lippery-words/

          But, AFAIK, never been tested in court with a Form 6a.

          It's all well and good serving a notice executing the break clause, even if it were a valid notice. Issue is, if tenant declines to go (as is his legal right as per 1988 HA of Thatcher ) likely to take 40+ weeks to evict him.

          In your shoes Jenny I'd arrange alternative accommodation for such an eventuality unless you fancy an illegal eviction charge also (criminal offence, fines...): Landlord can & have gone to jail for same.
          I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

          Comment


            #6
            Yeah, but that sentence was part of / talked about a tenant break rather than a landlord's one: "should one or more tenant wish to exercise the break clause a section 21". If a tenant wish to break, then the tenant serve the notice and the tenancy will end and that's that. Maybe the drafter was envisaging a tenant calling the landlord up saying they want to leave, and then in response the landlord has to serve a s21 per the clause which break the fixed term but a SPT then arise after the tenant deny making the phone call?
            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


              #7
              Think we need a test case
              I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

              Comment


                #8
                Any thoughts on that?

                Comment


                  #9
                  Someone (a tenant..) would need to defend an eviction depending on an s21 being used to execute a break clause on the basis - asserted by tenant - that the break clause hadn't been executed. Care to fund any chums in those circumstances who happen to be tenants being evicted?

                  Until and unless this happens .. who can say, eh?
                  I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                  Comment


                    #10
                    Do as KTC says and serve the notice yourself. They may just leave. Once they do, replace the Agent.

                    Comment

                    Latest Activity

                    Collapse

                    Working...
                    X