Withdrawl of notice

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    Withdrawl of notice

    T gave notice to operate a break clause (2 months). 48hrs later he has asked to withdraw notice. I am fine with this (delighted, in fact!) as he is a super T. But am I right that technically I need to start / will be starting a new tenancy? Any suggestions for best practice? T won't be staying all that much longer but longer than the two month notice period and isn't sure of dates.
    Assume I know nothing.

    #2
    I just pretend I did not receive the notice. Who is going to claim otherwise?

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      #3
      Well I admit that that would be my natural inclination too. However, if the reality is that you are in fact creating a new tenancy and it did come up at a later date e.g. during a dispute, you might be right and royally buggered. I can't imagine that happening in this case but wondered whether anyone had any any quick and easy solutions.
      Assume I know nothing.

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        #4
        The break clause should end the tenancy.
        If the tenant doesn't move out, a new periodic tenancy will begin.
        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).

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          #5
          The first thing to do is to check that the notice was valid and properly served. If it was not, landlord and tenant can confirm it in writing and no action will be required. (It should not be confirmed the notice was invalid if it was valid.)

          A notice to quit cannot be withdrawn. The consensus is that the same goes for a notice exercising a right to break, but so far as I know there is no ruling which confirms that that is the case. Until there is such a ruling it is wise to assume that a break notice cannot be withdrawn.

          The OP has two choices. One is to "take a view" and carry on as if no notice had been served and hope for the best. The other is to go for belt and braces and treat the tenancy as ending on the date the notice expires. It needs to be borne in mind that if the tenancy ends it will not be followed by a statutory periodic tenancy as the fixed term tenancy has been brought to an end by the tenant. A new tenancy will only arise either by express agreement or by the actions of the parties, e.g. payment and acceptance of rent. If a new tenancy is expressly agreed the terms will be as agreed. If not expressly agreed, the terms will be those of the fixed term except to the extent that they are inconsistent with a periodic tenancy. There is also the question of whether any deposit needs reprotecting and indeed if the deposit needs refunding, not to mention all the other traps for the unwary when renewing. As against that, there is the point that if the tenant has asked for the notice to be regarded as ineffective that he ought not to be able to derive any advantage which may flow from the fixed term tenancy having come to an end.

          There is a possible argument that if the parties agree that the notice is to be disregarded that they have agreed the grant of a new fixed term from the day after the notice expires until the date the original term would have expired. Unless the parties want an entirely new agreement, it would be a good idea to have an express agreement to that effect, though that would not get round the fact that there is still a new tenancy.

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            #6
            Thank you. Very helpful.
            Assume I know nothing.

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