S21 served for end of tenancy but would like to end tenancy earlier

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    S21 served for end of tenancy but would like to end tenancy earlier

    The letting agent served a S21 Notice at the start of the tenancy to coincide with the end date however I (the L) would now prefer to end the tenancy early.

    Does the fact that a S21 Notice has already been served stop me serving another one with an earlier date?

    The original S21 was dated to come into effect in Novemeber 2008, if I served now it would be July / Aug 2008.

    There is a twelve month AST in place, with the option for either party to give the other two months notice any time after six months from the start. Month seven of the tenancy has just commenced.

    Thanks in anticipation. Sam

    #2
    1. You (as L) cannot implement s.21 rights until fixed term ends.
    2. You may have s.8 rights if T is in breach. Does any of the eighteen possible grounds (Schedule 2 to Housing Act 1988) apply?
    3. Finally, you may have break clause rights. Please cite EXACT text of the clause.
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

    Comment


      #3
      The exact text (for the entire section on the length of the tenancy) is:

      [start]

      TERM
      A term certain of twelve (12) months less one day from 3rd November 2007 ending on 2nd November 2008.

      This agreement may be terminated by either party giving the other not less than two (2) months notice (the “notice period”) in writing provided that there has expired a period of no less than six (6) months (the “minimum term“) from the commencement date of the original agreement.

      [end]

      The tenant has paid the rent late every month since the start of the tenancy - mostly by a day or two, although once it was four weeks late (and was received just before the next rent due date).

      I wrote to him about the continual late payment and as a result we had a long chat during which he blamed banking errors for the delays and promised to sort things out. Two days later he rang me to say he'd been to the bank and things had been sorted out ..... this months rent is 8 days overdue and I have written to him again. As yet no response has been received.

      Other than the rent (which is obviously a big issue!) he has been a good tenant and the property is being kept clean & tidy.

      Comment


        #4
        Originally posted by sam_ldn View Post
        [start]

        TERM
        A term certain of twelve (12) months less one day from 3rd November 2007 ending on 2nd November 2008.

        This agreement may be terminated by either party giving the other not less than two (2) months notice (the “notice period”) in writing provided that there has expired a period of no less than six (6) months (the “minimum term“) from the commencement date of the original agreement.

        [end]
        Don't these two clauses contradict each other? That is really confusing. Is it a six month lease or a twelve month lease?
        Now signature free.

        Comment


          #5
          No. "Term certain", in this context, means a fixed term. The existence of a break clause during that does not alter the fixed term as such; it merely allows either party the privilege of terminating, by Notice, at any point after the first six months. The fixed term remains twelve months, following which statutory continuaton rights may arise.
          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
          4. *- Contact info: click on my name (blue-highlight link).

          Comment


            #6
            Originally posted by jeffrey View Post
            No. "Term certain", in this context, means a fixed term. The existence of a break clause during that does not alter the fixed term as such; it merely allows either party the privilege of terminating, by Notice, at any point after the first six months. The fixed term remains twelve months, following which statutory continuaton rights may arise.
            OK, I'm having a stupidity spasm over this.

            It's a 12 month lease, but you can end it at six months? Why not just have a six month lease?

            I'm just having trouble with the logic of this.
            Now signature free.

            Comment


              #7
              Because any statutory continuation tenancy cannot begin until end of fixed term, either twelve-month expiry or sooner determination.
              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
              4. *- Contact info: click on my name (blue-highlight link).

              Comment


                #8
                Originally posted by jeffrey View Post
                Because any statutory continuation tenancy cannot begin until end of fixed term, either twelve-month expiry or sooner determination.
                **(scratches head) I still don't get it. The only difference "in effect" that I can see is that tenant has more lengthy notice obligations for the second six month period than what he might do if he was already in a periodic tenancy.

                Is statutory continuation tenancy a statutory periodic tenancy?

                What else am I missing?
                Now signature free.

                Comment


                  #9
                  Originally posted by lorenzo View Post
                  Is statutory continuation tenancy a statutory periodic tenancy?
                  Yes, it is.
                  JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                  1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                  2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                  3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                  4. *- Contact info: click on my name (blue-highlight link).

                  Comment


                    #10
                    Here I go again! A break clause unless specifically negotiated before the commencement of the tenancy shall have no effect (on the tenantr's rights to continue to the end of the fixed term) if contained within the main body of text and the tenant was unaware of its implications; it's a potential unfair term. The tenant could dig in his heels and ignore any S.21 Notice the landlord served to terminate before the end of the fixed term.
                    The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

                    Comment


                      #11
                      Originally posted by Paul_f View Post
                      Here I go again! A break clause unless specifically negotiated before the commencement of the tenancy shall have no effect (on the tenantr's rights to continue to the end of the fixed term) if contained within the main body of text and the tenant was unaware of its implications; it's a potential unfair term. The tenant could dig in his heels and ignore any S.21 Notice the landlord served to terminate before the end of the fixed term.
                      Here you go again indeed - ie: making all sorts of grand sweeping statements about unfair terms and misinterpreting (or misunderstanding) the law on incorporation of contractual terms.

                      (a) UTCCR only bites on standard terms if they cause a significant imbalance in the rights and obligations of the parties. Therefore if the break clause is bilateral (as in this case), prima facie, there is no imbalance, and the regs are irrelevant.

                      (b) If it is a "potential unfair term" then that would have no effect on the enforcement of the break clause. It would only be unenforceable if it is an actual unfair term, and only the court can make such an order. In this case, the term is not unfair (see (a)).

                      (c) The common law on incorporation of contractual terms is that if a party has taken reasonable steps to bring a term to the other party's attention, then the term is incorporated into the contract. There is not even a requirement for the party to have even read the term - for example, in a recent case, the T&Cs for a newspaper scratchcard game were contained not on the card, and not even in that day's edition of the newspaper but in future and previous editions of the newspaper; see O'Brien v. MGN Ltd [2001]. Clearly in this case, as the break clause contained within the tenancy agreement, it was incorporated into the tenancy agreement and binds the parties.


                      It does seem to me that there is a tendency on this forum (and others) for UTCCR 1999 to be used in a rather "knee-jerk" manner as some sort of joker or trump card that cancels any unwanted or inconvenient terms.
                      Health Warning


                      I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                      All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                      Comment


                        #12
                        In this case I think the T would be aware of the length of the agreement and the existence of the break clause as these details are on the first page of the TA, immediately after the property address and immediately before information regarding the rent and security deposit.

                        Furthermore, a copy of the TA was emailed to the T a week before they were asked to sign it, thereby giving them plenty of time to read through the document and raise any questions they might have.

                        Comment


                          #13
                          Whilst I agree agent46 argues the point well, a prominent firm of specialist solicitors has indicated to me there is no case law to illustrate this point, but he (or she?) says there is which I will gladly pass on.
                          The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

                          Comment


                            #14
                            Originally posted by Paul_f View Post
                            Whilst I agree agent46 argues the point well, a prominent firm of specialist solicitors has indicated to me there is no case law to illustrate this point, but he (or she?) says there is which I will gladly pass on.
                            There are bucketloads of cases on incorporation of terms. O'Brien is simply just the latest in a long line of authority that stretches back to Thompson v. L M & S Raliway Co [1930], via Olley v. Marlborough Court [1949] J Spurling Ltd v. Bradshaw [1956] and Thornton v. Shoe Lane Parking Ltd [1971].

                            I'd be very surprised indeed if a prominent firm of solicitors wasn't aware of those cases because most first year law students are (otherwise they wouldn't pass their contract law exams).
                            Health Warning


                            I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                            All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                            Comment


                              #15
                              You are a solicitor or even barrister I suspect!
                              The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

                              Comment

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