Is break clause notice valid if tenant overstays mutual break clause notice period?

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    Is break clause notice valid if tenant overstays mutual break clause notice period?

    I have used an openrent tenancy agreement for a 12 month tenancy with a tenant due to expire on 11 September 2020 with a break clause. The mutual break clause states "Any time after 4 months from the start of the Tenancy Agreement either party can exercise the break clause by giving two months notice in writing to the other party. This means that the earliest time that the tenancy can be ended by this clause is after the expiry of 6 months from the commencement of the Term."

    On 12 April 2020 the tenant sent me notice to leave under the mutual break clause for a departure date on 12 June.

    On 13 May they then changed their mind and said they could not get flights so asked if they could change the departure date to 12 July instead. So I said to her "I accept termination of your original notice and I have accepted your new move out request for 12 July 2020"

    Now I am concerned they will overstay their tenancy as they have been very flaky about departure plans.

    If they do not leave on the 12th July
    1) does the tenancy revert to an expiry date of 11 September 2020 (i.e they have to either stay or pay rent up to that date) or
    2) can they just give notice again under the break clause? (or can this only be invoked once)
    3) can they just leave on a day of their choosing after the 12th July? or
    4) some other scenario?

    Any help appreciated as it is not clear from the tenancy agreement how this would be treated.

    #2
    The problem is that you informed them that you regard their notice as nul and void. You did not agree a new surrender date in any formal way (a deed).

    Comment


      #3
      Once a notice exercising a right to break has been served it cannot be withdrawn even with the consent of the landlord. The effect of the tenant's notice was therefore to end the tenancy on 12th June. Since the tenancy was brought to an end by an action on the part of the tenant a statutory tenancy would not have arisen on 13th June if the tenant had remained in possession.

      However, "I accept termination of your original notice and I have accepted your new move out request for 12 July 2020" probably amounted to an agreement for a new tenancy and there will certainly be a new tenancy if you have accepted rent for any period after 12th June. So, if you have accepted rent and the rent is paid monthly, what you have is a non-statutory monthly periodic tenancy. The terms of the tenancy are the same as those of the fixed term tenancy except to the extent that those terms are inconsistent with a monthly periodic tenancy.

      Strictly, the tenant now needs to give a month's notice to quit to end the tenancy. However, since you have agreed she can leave on 12th July, if she leaves on the date I would be inclined to accept it. However, if she stays on inform her that she needs to serve a notice to quit.

      I am afraid that the above is just another example of why the complications of break clauses should not be introduced into short term residential tenancies unless there is a very good reason.

      Comment


        #4
        Lawcruncher,

        Such a brilliant and thorough response, thank you so much.

        Comment


          #5
          Thanks Andrew that makes sense.

          Comment

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