Got served a break notice - how/when do I challenge?

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    Got served a break notice - how/when do I challenge?

    Hello,

    I rented a property to rent out to others, but I never lived there - so it's not an AST (legally speaking), just a common law tenancy I suppose.

    LL served me a break notice:

    1. How do I challenge this break notice i.e. its validity? What form do I use for the Court? I already sent a letter to the LL, but she said it is valid, so how do I challenge it at Court?

    2. When do I challenge it at Court? Before the break date or after? Do I lose my right to challenge the break notice after the break date?

    3. If I stay in possession of the property after the break date and LL makes a claim for possession, can I challenge the break notice at the hearing?

    Apologies for lots of questions

    Thanks

    #2
    If you are sub-letting with permission of your landlord, to individuals on assured (shorthold or otherwise) tenancies, then on expiry of a valid break notice from your landlord to you your tenants become direct tenants of your landlord. If a purported break notice isn't valid, nothing legally happens.

    Perhaps you should start by showing us what the break clause in your tenancy is and why you think the purported break notice isn't valid.
    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
      Kindly quote BOTH break clauses AND break notice (no names or addresses)
      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


        #4
        Thanks - will try and send the details in the evening

        But, answers to my questions would be really appreciated too. Just would like to know the procedure...

        Thanks again

        Comment


          #5
          Either the notice is valid or it isn't.

          If it isn't, you point out why it isn't to the landlord.
          They either agree (and possibly take action to correct and issue new notice) or they don't.
          One or both of you may need some legal advice (£££).

          If they don't agree, you either leave or (presumably) you don't.
          The landlord either accepts the situation or takes you to court to enforce the notice (at which point everyone starts paying solicitors and possibly barristers a lot more money).
          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


            #6
            Thanks JP

            Update:

            LL called this morning and said he will change the locks after the BN has expired and give the subtenants new keys, so effectively removing me from the equation

            Can LL do this?

            Note: I don't and never have lived there

            Comment


              #7
              You still haven't answer our questions......
              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


                #8
                Under the common law when a fixed term tenancy comes to an end the tenant has no right to require a new term and since it is fixed it cannot continue. The common law also allows a fixed term to be brought to an early end if the terms of the tenancy so provide.

                The question to ask is: Is the tenancy one where statute has intervened to override the common law? There are three regimes which afford tenants statutory security of tenure or restrict the landlord's right to immediate possession: agricultural, commercial and residential. The tenancy is clearly not agricultural. The rules which apply to commercial and residential tenancies require the tenant to be in occupation. You are not in occupation. Accordingly no statutory regime comes to your assistance.

                If served with a notice purporting to exercise a right to break you have three possible arguments:

                1. The clause relied upon does not grant a right to break because it is something quite different or because it is defective.
                2. If the clause does grant a right to break, the notice is invalid for some reason, e.g. it has been served at the wrong time; it gives an incorrect period of notice; it does not comply with some requirement of the clause; some condition attached to the right has not been fulfilled.
                3. If the clause does grant a right to break and all requirements have been complied with except as to manner of service, the notice is invalid because it was incorrectly served, e.g. by being sent to the the wrong address or because some strict requirement set out in the tenancy agreement or lease was not observed.

                If you set out for us word for word, but omitting details such as names and addresses: (a) the break clause (b) the notice and (c) any provisions in the tenancy agreement relating to the service of notices and confirm how the notice was served and when, we can offer an opinion as to whether your tenancy will end when the landlord thinks it does.

                Comment


                  #9
                  Originally posted by Lawcruncher View Post
                  If you set out for us word for word, but omitting details such as names and addresses: (a) the break clause (b) the notice and (c) any provisions in the tenancy agreement relating to the service of notices and confirm how the notice was served and when, we can offer an opinion as to whether your tenancy will end when the landlord thinks it does.
                  OP is not asking for guidance on validity.
                  OP believes it is invalid and wants to know the process for challenging it.

                  Comment


                    #10
                    So what is the method to challenge?
                    Without more info from OP, who can opine on validity of break clause.?
                    IMO OP cannot be excluded without a Court Order.

                    Comment


                      #11
                      The tenancy cannot be a business tenancy to which Part II of the LTA 1954 applies as it applies to "premises which are occupied by the tenant and are so occupied for the purposes of a business carried on by him".

                      Comment


                        #12
                        Hello All,

                        Many thanks for all your help - the matter was settled with my LL, but I still didn't really understand how/when I could challenge the break notice i.e. the method.

                        At the possession hearing brought on on by the LL or another method (it may be useful to someone else).

                        Thanks again anyway!

                        Comment


                          #13
                          See post #5
                          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


                            #14
                            If the tenancy is one which has no statutory protection and the notice to break is valid, no challenge will be successful.

                            Comment

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