Rolling break clause/termination only for landlord and not tenant - Is this unfair

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    Rolling break clause/termination only for landlord and not tenant - Is this unfair

    Hello everyone, I have an issue with my current landlord and would like to seek advice before considering court option.

    I am currently in a 3yr short-hold fixed term contract from 2019-2022. Prior to entering into the contract, I informed the agent I needed a break clause and able to exit the contract anytime after because I might need to move. I was informed the landlord has agreed to a break clause in 2020. However, given the complexity of the legal language I did not realise the contract only allows the tenant to terminate on the break clause date in 2020 by giving 2 months notice - thereafter the tenant needs to stay till 2022. On the other hand, the landlord can give 2 months notice to terminate the contract anytime from the break clause date (rolling break clause) till the end of the contract.

    I am considering legal action against the landlord under the UK consumer rights given one way rolling break clause favouring the landlord is unfair practice but not sure if I have a case. Thank you

    #2
    Sorry to hear this. What evidence do you have landlord agreed to what you wanted?? Think that's the key.
    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...

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      #3
      I have no evidence unfortunately, the agent acted on their behalf and misrepresented the situation. However the agent themselves are not liable once contract is signed. Very unfortunate as I will likely need to continue pay rent for 12 months.

      Is there an option to argue that post the break clause, both landlord and tenant should be bound by the contract and it is unfair that the landlord can terminate by giving 2 months notice but not the tenant? Or does the landlord always have more power?

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        #4
        Have you asked the landlord to release you early? What did they say?

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          #5
          That type of clause is probably unfair, it’s one of the examples used in an old OFT document highlighting typical unfair clauses in tenancy agreements.

          Unfortunately, the document is now out of date because consumer law has moved on.

          The current regulation says “A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.”
          Consumer Rights Act 2015 s62(4).

          I’d say that covers it, but there are exceptions and there’s not a lot of helpful case law.
          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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            #6
            Of course if you did take legal action the finding could also be that the break clause is unfair, so it is voided and neither of you could excercise the break clause.

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              #7
              As nukecad suggests, it does not look like consumer law will help because if a term is declared unfair it does not bind the consumer. The Consumer Rights Act 2019 does not give the court power to rewrite a contract.

              The appropriate remedy here is rectification on the basis that the contract did not reflect what the parties understood was agreed immediately before the contract was made. You will need evidence of what was understood and it seems that you have nothing in writing or recorded which helps meaning you will have to rely on oral evidence.

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                #8
                Yes it is unfair, but it isn't so clear what you do about it.
                One (somewhat unpleasant) possibility is just to tell them you don't have the money any more and you will stop paying the rent. At some point they will try to evict you. Even paying the court fees will be much less than an extra 12 months rent.

                (You obviously won't get a reference from them, and they could theoretically just let you stay and sue you for the rent rather than evict. But if they think you have no money, that would be pretty stupid).

                The whole thing is far more likely to be down to the agent, rather than the landlord, they have the most to gain from a 3-year tenancy.
                BTW, what does the agreement actually say? It's possible that it doesn't actually mean what you think it does.

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                  #9
                  Originally posted by Ted.E.Bear View Post
                  BTW, what does the agreement actually say? It's possible that it doesn't actually mean what you think it does.
                  I meant to say that. Please quote the clause(s) in full so that we can comment.

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