Using break clause as a joint tenant

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    Using break clause as a joint tenant

    Hello,

    I am a joint tenant on an AST and now, due to a change in circumstances, wish to use the break clause in the agreement in order to end the tenancy and vacate the property earlier than the fixed term.

    I have spoken to the other named tenant of my plans to use the break clause and they (for now) agree to allow me to do this and understand that they will also need to vacate the property unless they are able to agree on some alternative arrangement with the Landlord.

    The tenancy agreement says the following:
    1.6 Term
    1.6.1 The term shall be from and including 2nd July 2020 to and including 1st July 2021 and then the tenancy continues as a monthly contractual periodic until ended following either party giving notice. Please see clause 2.5 as it contains important information about what you must do to end the tenancy.
    and:

    2.5 Break Clause
    2.5.1 This agreement creates a tenancy that starts with a fixed element and then becomes periodic. This would normally guarantee both parties the rights and obligations for the fixed element and a minimum of one period. The following two clauses allow either party to terminate the agreement earlier than that date.

    2.5.2 The Landlord may bring the tenancy to an end at any time after the first six months by giving to the Tenant at least two months’ written notice stating that the Landlord requires possession of the property. A notice under section 21 of the Housing Act 1988 will suffice to implement this sub-clause.

    2.5.3 The Tenant may bring the tenancy to an end at any time after the first six months by giving to the landlord at least one month’s written notice stating that the Tenant wishes to vacate the property. A letter will suffice to implement this sub-clause.

    2.5.4 Early termination - If you wish to terminate the tenancy early and the Landlord agrees, all rents until the end of the notice period as well as any marketing, referencing, inventory and checkout costs will be payable.
    My questions are:

    - If we want to use the break clause, do we need to end the tenancy and vacate the property by month 6 (giving 1 month’s notice) or can we do it at any time after month 6 provided we give 1 month’s notice?

    - If we use the break clause and the other tenant, named on the agreement, changes their mind (I am quite worried about this), what happens to me given that I wish to vacate and no longer be on the tenancy?

    #2
    Not going to address all of this, but it is tricky if you think minds might change. As the first step I would get a signed and witnessed agreement (preferably as a Deed) with the other parties of the joint tenant that they agree to give joint notice, and if such notice is not given then they agree to absolve you of all joint and several liability for the whole of the rent. That won't stop the landlord from suing you if you don't all leave and the rent stops, but you would be able to sue your flatmates in turn.

    What's in it for them? You could give them an incentive (like agree to some cash payment which would make it a contract with them when that is paid)

    Comment


      #3
      "The tenant" is all joint tenants together, not just you (otherwise bit would have been worded differently) but landlord may not realise
      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
        Both (all) tenants will need to give notice under the break clause.
        So, as long as the other tenant is prepared to sign it, they won't be able to change their mind later.

        If only one of you signs the notice it won't be valid and the tenancy won't end.
        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


          #5
          Originally posted by jpkeates View Post
          Both (all) tenants will need to give notice under the break clause.
          So, as long as the other tenant is prepared to sign it, they won't be able to change their mind later.

          If only one of you signs the notice it won't be valid and the tenancy won't end.
          Yes, but if all parts of the T sign a notice, send it off, and then one person does not depart, it is correct that they won't be able to retract a valid notice, but OP will still be a bad position (and even worse position in fact if double rent is claimed). Why I suggested OP actually needs a separate contract with flatmates.

          Comment


            #6
            Originally posted by AndrewDod View Post
            Yes, but if all parts of the T sign a notice, send it off, and then one person does not depart, it is correct that they won't be able to retract a valid notice, but OP will still be a bad position (and even worse position in fact if double rent is claimed). Why I suggested OP actually needs a separate contract with flatmates.
            I'd have to do some research on cases - so this is a bit essay light.

            The joint tenancy ends when the notice does and the joint liability should end at that point, so only the person not moving out is holding over and could be charged mesne profits.

            I am not 100% certain of that, but it looks right.

            But a separate contract between the tenants would be a good idea (but as the other tenant I wouldn't sign it, because, as you point out, what's in it for me?).

            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 jpkeates View Post
              The joint tenancy ends when the notice does and the joint liability should end at that point, so only the person not moving out is holding over and could be charged mesne profits.
              I'm not 100% sure of that.

              think it boils down to what exactly it is that allows a joint tenant to be severed.

              Clearly a periodic tenancy is special and allows severance. But there are no circumstances where a joint tenant can be severed by virtue of something done during the fixed term (nor can any single tenant have any voice at all).

              I suspect that the most optimistic scenario is that if a joint tenant gives notice which is accepted during the fixed term (which is what this would effectively be)
              and then fails to leave
              then we could could say that the effect of the notice is to convert it into a periodic tenancy (which is what happens in effect if L gives notice under a break clause)
              The one person would then have to give notice AGAIN immediately the notice expires
              and then wait another 1.999 months.

              Likewise if L were to give notice under a break clause, and all tenants failed to leave, all tenants would remain severally liable unless an individual tenant gave their own notice AFTER the break clause has expired

              Comment


                #8
                Originally posted by jpkeates View Post
                The joint tenancy ends when the notice does and the joint liability should end at that point, so only the person not moving out is holding over and could be charged mesne profits.
                Effectively, yes.

                Draper v Crofts & Bartlett [1846] 153 ER 807

                If A holds over without B's assent, B is not liable for rent (/mesne profits) becoming due during such holding over.
                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


                  #9
                  Thanks for the replies.

                  Originally posted by AndrewDod View Post

                  Yes, but if all parts of the T sign a notice, send it off, and then one person does not depart...
                  This is the scenario that I'm most concerned about. I believe they will sign the notice with me but am worried that, when the time nears to having to vacate, they will change their mind and then refuse to leave.

                  It sounds like I may not be liable for rent after the notice expires then, from a legal point of view, but I suspect that it could get quite messy in terms of how the Agency/Landlord decide to deal with it in practice.

                  Also, just so that I'm not rushing into making a decision now, am I correct in thinking that 2.5.3 of the agreement doesn't mean that I need to give notice before 2nd December 2020 but that I can give notice at any time after this as long as the tenancy has lasted at least 6 months by the time the notice expires?

                  Comment


                    #10
                    Originally posted by OrangeFace View Post
                    Thanks for the replies.



                    This is the scenario that I'm most concerned about. I believe they will sign the notice with me but am worried that, when the time nears to having to vacate, they will change their mind and then refuse to leave.
                    As KTC says, you will not be liable for further rent in this circumstance.

                    Comment


                      #11
                      Originally posted by OrangeFace View Post
                      Also, just so that I'm not rushing into making a decision now, am I correct in thinking that 2.5.3 of the agreement doesn't mean that I need to give notice before 2nd December 2020 but that I can give notice at any time after this as long as the tenancy has lasted at least 6 months by the time the notice expires?
                      That's how I read it as well.

                      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


                        #12
                        Originally posted by AndrewDod View Post

                        I suspect that the most optimistic scenario is that if a joint tenant gives notice which is accepted during the fixed term (which is what this would effectively be)
                        and then fails to leave
                        then we could could say that the effect of the notice is to convert it into a periodic tenancy (which is what happens in effect if L gives notice under a break clause)
                        The one person would then have to give notice AGAIN immediately the notice expires
                        and then wait another 1.999 months.
                        That is not what happens.

                        If the joint tenant (i.e. all of the individuals that comprise the tenant) sign the valid notice under the break clause, then the tenancy ends and the tenant (and any part of the tenant) have no further rights to the property.

                        The case with the landlord giving notice is different because HA1988 creates a SPT (but the S21 that exercised the break clause can be relied upon for possession proceedings).

                        A notice to exercise the break clause served by less than all the joint tenants is not valid and cannot be made valid by the LL "accepting" it.

                        Comment

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