Break clause vs. Tenancy cancellation

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    Break clause vs. Tenancy cancellation

    Hello everyone,

    I have a neurological disorder (a disability) and require stability and relative peace to remain healthy. Since I moved in to this HMO, almost 3 months ago, the two remaining flats have been let. I have already complained about one of the tenants and quite frankly am annoyed with the other's behaviour - but for brevity I will not include details of all the goings on.

    I am becoming unwell, not sleeping, and am visiting the doctor this week in regard to my now elevated anxiety. I wish to move on as soon as possible but am extremely worried that the break clause will leave me paying rent until the letting agents can (be bothered to) find another tenant. I would feel re-assured if I can leave with a 'clean break' - i.e not paying any rent from the date I leave. So before I approach the LA about this I would like some advice on leverage - or actually cancelling the tenancy agreement based on some basic issues.

    I think the LA may be unaware of the specifics of the AST which was issued by/through the referencing company. The break clause says I must pay 1/12th the marketing fees for every month left of the 12 month AST, plus the rent until the flat is occupied by a new tenant, but the letting agent says "only the rent will be payable".

    On the check in day, the LA showed me the electricity meters in the communal cupboard. These are PRIVATE electricity meters. I was surprised, and am disappointed that I cannot change supplier, get a better price, qualify for discounts according to my status in life or buy credit out of office hours or without visiting the LA offices - I suffer from social anxiety. I immediately pointed this out and said that at the least, I must not be charged more than the landlord is paying. Even though I have offered to re-program the meters or calculate what should be paid for the token cards, the cards are still issued on the basis that I will pay for it later - 18 cards (face value £10 each) so far.

    It is my understanding that the AST MUST state that I will pay the LL for electricity - it doesn't.

    After moving in, I contacted the water companies (separate for supply and waste in this area) and neither of them could open an account for me, with the supply company telling me the property is 'non-residential'. My AST does not say that water is included in the rent.

    I believe these two utility issues therefore breach the clauses stating that I am responsible for all services, and that the LL is responsible for 'none/no services'.

    So if anyone can offer advice I would very much appreciate it as I will start viewing other properties this week. I have to get out soon.

    Many thanks

    #2
    The landlord isn't allowed to make a profit on the supply of electricity (or water).
    They are not obliged to get the best or most appropriate tariff.

    The landlord's breaches of the tenancy agreement (if they are actually breaches, which I am not sure about) are probably not sufficient to bring the whole agreement to an end or frustrate the tenancy.

    I would probably explore the water company's assertion that the property is not residential, if it isn't a legal HMO that might be a better point to use to try and end the tenancy early.

    If your tenancy has a fixed term, the landlord is pretty much able to charge whatever they wish to free you from your commitment to the fixed term.
    If there is a break clause, that would be useful, but it sounds more like a pre-determined early termination clause, rather than a break clause.

    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


      #3
      Thank you for answering.

      I understand about electricity provided by the landlord (LL's PPU + standing charge + 5% VAT). However:

      The LA cannot produce a LL electricity bill for calculation for three months now and do not know how much to charge me. This is no good for budgeting.

      Due to my disability I probably wouldn't have rented a property that didn't allow me freedom regarding buying electricity at my convenience. I am forced to buy it from them during office hours and was not made aware of this before the tenancy began and nor does it say it on the tenancy agreement.

      I believe the Housing Act says that the LL can only [legally] charge me for services if stated in the AST and cannot withold service from me as this would be harassment (maybe I am wrong), but I intend to pay my way.

      I will look into the water company route after I obtain written confirmation of the 'non-residential' status.

      Funnily enough the Council Tax Bill is addressed to UNIT 1, not Flat 1, but this may not mean anything.

      The early release or break clause is worded as such:

      1. Ending Tenancy:

      Should either party wish to terminate the Tenancy, it is agreed that the Tenant must serve a minimum of 1 month’s advance written notice to be served on the Landlord. The Landlord must serve a minimum of 2 months advance written notice to be served on the Tenant. The tenancy must not expire within the first 12 Months of the Tenancy commencement date.

      2. Additional clause(s):

      • Leaving early. This is a breach of tenancy and the tenant agrees to pay 1/12th the Letting Agents fees to the Landlord for each month left on the tenancy and the rent due until a suitable new tenant starts the tenancy.

      Many thanks.

      (I posted this already but it was flagged as spam, so you'll probably see it again when it's been approved)

      Comment


        #4
        Getting a council tax bill means that the council considers it to be a residential property, and if it is your personal bill, it means they are treating it as a self contained flat.

        Comment


          #5
          Thank you for the clarification leaseholder64. It makes perfect sense. I find it hard to believe that it is considered anything other than residential, and the water bill issue is probably because a company is paying the bill (the LL has a company name).

          Comment


            #6
            One of my flats has the gas & water supplied by the freeholder. Strangely enough though, the electricity is individual. I don't think you can read too much into the water being commercial.
            To save them chiming in, JPKeates, Theartfullodger, Boletus, Mindthegap, Macromia, Holy Cow & Ted.E.Bear think the opposite of me on almost every subject.

            Comment


              #7
              Thank you for your answer JK0. Yes I'm sure there are many varieties of ways of obtaining and providing services.

              I think my main point is that I'm expected to pay for something that I didn't want (a private supply of electricity) without prior verbal notice, and official notice in the important document that (I think) it should be. Additionally, I believe this also breaches at least the clause:

              2. Landlord Obligations

              2.3 Pay Outgoings

              Pay all taxes, insurance, service charge assessments, impositions and other outgoings in respect of the Property including the following services: no utilities/services.

              However, I do accept that this may be picking holes.

              Ultimately, there are many other obligations the LA (on behalf of the LL) should be committed to, like replacing broken waste bins, cleaning the communal areas, notifying me of (now) three months of continuous building work and simply not letting tenants in the building that are breaching their tenancy agreements (additional tenant living there) and causing a nuisance in terms of visitors slamming doors at 1:30am, hanging around in the communal areas, causing many incidents of noise that disturbs me and stops me sleeping properly, etc, etc. I could write a book.

              I will possibly have to get out and advertise the property myself to ensure a rapid replacement tenant.
              Last edited by eon_flux; 29-09-2019, 17:39 PM. Reason: typos and grammar

              Comment


                #8
                As it is a HMO, it seems reasonable that there is a single electricity supply and a single water supply to the property, each contracted by the landlord..

                If the Tenant is to be responsible for the cost of those services, then the only way it can be done is for the T to pay the LL.

                If this is an arrangement that you do not want, then you should determine the setup before agreeing to a tenancy.

                Originally posted by eon_flux View Post
                Ultimately, there are many other obligations the LA (on behalf of the LL) should be committed to, like replacing broken waste bins, cleaning the communal areas, notifying me of (now) three months of continuous building work and simply not letting tenants in the building that are breaching their tenancy agreements (additional tenant living there) and causing a nuisance in terms of visitors slamming doors at 1:30am, hanging around in the communal areas, causing many incidents of noise that disturbs me and stops me sleeping properly, etc, etc. I could write a book.
                Have you notified the LA of these issues?
                If not. then how are they to know?

                Comment


                  #9
                  Thank you for your answer.

                  I rely on the letting agent to show me the property when I am at the viewing. That is their job. No mention of private meters and not being shown the communal cupboard, despite being shown all other rooms in the property.

                  I have autism. The LA was told this at the viewing. I don't have family nearby and I don't have a social worker. I'm trying to live life as 'normally as possible'. I don't expect special treatment, but I do expect to be told relevant things about the property before I sign the tenancy agreement. And failing that, shouldn't this have been in the TA so that I could have known before signing?

                  Can anyone tell me if this is true:

                  https://www.citizensadvice.org.uk/co...ge-for-energy/

                  'Your landlord can only charge you for gas or electricity if your tenancy agreement says they can.'

                  I have complained about the tenants next door, they received a warning. It is not my job to play detective and provide proof for the LA. The LA are the ones that say we will have new bins, and the property will be improved, but the basics are not being dealt with. I don't need new stones on the property boundaries (more tradesmen outside my windows), I need a sense of order, which is missing here. Even if I complained about the building work, they are hardly going to tell them to stop work until I leave.

                  Can anyone please answer my question about the meters. I am simply adding other facts as background. Many thanks.

                  Comment


                    #10
                    1. Ending Tenancy:

                    Should either party wish to terminate the Tenancy, it is agreed that the Tenant must serve a minimum of 1 month’s advance written notice to be served on the Landlord. The Landlord must serve a minimum of 2 months advance written notice to be served on the Tenant. The tenancy must not expire within the first 12 Months of the Tenancy commencement date.

                    2. Additional clause(s):

                    • Leaving early. This is a breach of tenancy and the tenant agrees to pay 1/12th the Letting Agents fees to the Landlord for each month left on the tenancy and the rent due until a suitable new tenant starts the tenancy.


                    The leaving early clause is not hooked up to the break clause. If you exercise the break clause the tenancy will end on expiry of the notice. If you leave when the tenancy ends you will not be leaving early.

                    Comment


                      #11
                      Thank you Lawcruncher.

                      Are you saying I just need to provide 1 months written notice and the tenancy will simply be terminated after the month has ended?

                      If this is the case, what is the last sentence of clause 1 referring to:

                      'The tenancy must not expire within the first 12 months of the Tenancy commencement date.'

                      To the layperson (me) this seems to imply the tenancy is for a definite period of 12 months, i.e. it cannot simply end before 12 months for no reason.

                      Many thanks for your help.
                      Last edited by eon_flux; 30-09-2019, 08:29 AM. Reason: typos and grammar

                      Comment


                        #12
                        Originally posted by eon_flux View Post
                        If this is the case, what is the last sentence of clause 1 referring to:

                        'The tenancy must not expire within the first 12 months of the Tenancy commencement date.'
                        I somehow managed to miss that. It does of course make the break clause a nonsense if interpreted literally. It is effectively saying: You have a right to break...er...actually you don't.

                        If you were told during the negotiations that the terms included a right to break then you can argue for the agreement to be rectified.

                        If a right to break was not discussed, then you have to argue that the clause must have been intended to have some effect and that the landlord cannot give with one hand and take away with another.

                        Comment


                          #13
                          This seems to follow my theory that they are unaware of the wording in the TA which was issued by the referencing company on their behalf. It also potentially backs up my issue regarding the lack of clause to pay them for energy. The TA does say I will have to pay marketing fees. Administrative errors in a contract can only excuse certain errors, surely?

                          The 'negotiations' were a simple email exchange (slightly edited for privacy)


                          ...

                          However, please may we talk early release from tenancy? I can see the clause, but: Would it be invoked when/if I find somewhere else or do I ask before looking? Do you have to ask the landlord's permission, or is it simply a process to follow? What are the current marketing fees for flat 1?

                          Many thanks


                          ...

                          I’m sorry that you feel that you are wanting to look at moving again so soon. We will have to notify the Landlord but there will be no fee in having to find a new tenant if you vacate. Your tenancy agreement does not expire until the 30th June 2020 so you are responsible for paying rent and the services (to include Council Tax) until a new tenant moves into the property or to the end of your tenancy, whichever occurs first.

                          Can you please let me know if you are intending to vacate and when as we will need to commence marketing and re-advertise the property. We will also need to arrange viewings which we can do whilst you are still living at the property as this will ensure that you won’t have to pay rent for any longer than necessary.

                          Regards
                          Last edited by eon_flux; 30-09-2019, 09:26 AM. Reason: typos

                          Comment


                            #14
                            Thanks for your answers everyone.

                            I have now sought the advice of a solicitor which I probably should have done in the first place.

                            Happy landlording!
                            Last edited by eon_flux; 30-09-2019, 14:50 PM. Reason: typos and grammar

                            Comment

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