Break Clause in AST - Recommendations Please

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    Break Clause in AST - Recommendations Please

    I wish to add a Break Clause into our ASTs - actually, I'd like to put two in there if possible................

    First

    To allow either the Tenant or the Landlord to exit the Tenancy after 4 months.

    Second

    To allow the Tenant (not the Landlord) to exit the Tenancy after between 2 months and 4 months subject to a penalty to cover the cost of the Landlord re-letting (say openrent & reference fee so £69)

    The reason for this second clause is to allow tenants to leave amicably if they need to, rather than risk rent arrears or any subsequent "hassle".


    Can these 2 clauses be legally put in to an AST - and if so, how and where please?

    #2
    General advice is to avoid break clauses as they are notorius for being difficult to get valid (only way to find out if they are valid would be in court if tenant and/or landlord sues the other one).

    First doesn;t need a break clause: Simply make initial fixed term of AST only 4 months: An AST does not have to be 6 months - could be for a week, 2 months, 7 weeks, etc etc etc etc

    Done much training in being a landlord please?
    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


      #3
      Well yeah, but whether it's wise, and whether it has the effect you intended are different questions.

      A landlord cannot legally evict their tenant except through the courts obtaining an order for possesion and then having that order executed by bailiffs or High Court enforcement officers. The average time for that from court claim (so not including any notice period) to possession is longer than 4 months, and that was before all the Covid-19 possession suspension.

      You also cannot obtain an order for possession to take effect before six months in. And in England, you cannot serve a valid s21 notice in the first 4 months of an original fixed term tenancy.

      You may as well have a periodic tenancy from the beginning.
      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.

      I do not answer questions through private messages which should be posted publicly on the forum.

      Comment


        #4
        Originally posted by KTC View Post
        A landlord cannot legally evict their tenant except through the courts obtaining an order for possesion and then having that order executed by bailiffs or High Court enforcement officers. he average time for that from court claim (so not including any notice period) to possession is longer than 4 months
        I think closer to 10 to 14 months in many places - pre virus. 4 months almost never happens anywhere with a tenant who resists in any way. In that time they can basically steal £15K.

        This average of 4 months will include the 90%+ of tenants who leave voluntarily having been served notice.

        Comment


          #5
          You don't need the second break clause. You are entitled to say no or to charge the tenant your relet costs, (but no more) to allow a tenant to surrender.

          Comment


            #6
            Originally posted by landlord-man View Post
            The reason for this second clause is to allow tenants to leave amicably if they need to, rather than risk rent arrears or any subsequent "hassle".
            If a tenant wants to leave after 2 months, you can simply agree.
            Nothing in a tenancy agreement precludes you agreeing something different with the tenant - what the agreement does is set out the position that cannot be changed unilaterally.

            If you agree that the tenancy will end early, you can charge the tenant a fee that is limited to your actual costs.

            I don't see any advantage in either of the proposed clauses.
            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


              #7
              Originally posted by AndrewDod View Post
              I think closer to 10 to 14 months in many places - pre virus.
              In well defended case, possibly.

              Originally posted by AndrewDod View Post
              This average of 4 months will include the 90%+ of tenants who leave voluntarily having been served notice.
              If you believe the Ministry of Justice official statistics, then from claim through all the way to actual eviction via bailiffs or HCEOs in 2019 had a mean of 27.4 weeks, with a median of 18.7 weeks for those that started as accelerated possessions claims.
              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.

              I do not answer questions through private messages which should be posted publicly on the forum.

              Comment

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