Break clause in a 6 month fixed term TA and misspelling of one tenant's last name

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    Break clause in a 6 month fixed term TA and misspelling of one tenant's last name

    Good afternoon,

    We are just about to sign a TA which appears to be a six month fixed term. We say appears but the holding deposit stipulated a 12 month tenancy with a 6 month break clause which is what we wanted.

    However the TA which arrived today (one day before move in!) states:
    "Term of Tenancy

    The Landlord lets to the Tenant the Property for a period of Six Months. The Tenancy shall start
    on and include 17 April 2021 and shall end on and include 16 October 2021 but subject to any
    release clause stated in Schedule 5"

    Here is Schedule 5:
    "1.1 Break Clause
    Notwithstanding the fixed term stated in Clause 1 of the Main Terms of the Tenancy, the Parties
    hereby agree that this Agreement may be terminated by either the tenant giving to the landlord
    at least two months’ notice in writing, or the landlord giving to the tenant at least two months’
    notice in writing, subject to any prevailing regulations or legislation, such notice not to expire
    until after six months of the start date of the Term. At the end of such notice the Tenancy shall
    end and all obligations and responsibilities shall cease; subject nevertheless to any claim by
    either Party against the other in respect of any breach of any of the terms and conditions of the
    Agreement
    Should the Tenancy be terminated on a date which is not the last day of a rental period then the
    Tenant’s obligation to pay rent shall cease on the termination date and the rent payment will be
    apportioned accordingly."


    My questions are as follows:

    1.) Is this definitely a 6 month fixed term?
    2.) If so, why is there a break clause and more specifically - does this particular break clause still mean that neither party can end the agreement before 4 months have elapsed? Whilst 2 months notice is stipulated, the concern is that we could be given notice to leave before 6 months. I think that this "such notice not to expire until after six months of the start date of the Term." means that we can't but I just wanted to check.
    3.) My wife's last name has been misspelt on the agreement. Can we demand that this be amended correctly before we sign it? There isn't much time as the LA want it signed today and monies paid tomorrow even though we only had sight of the TA today.

    Thanks in advance with any assistance.

    #2
    1) It might be contradicted somewhere else, but based on what you've posted, yes.
    2) I think that whoever has put the agreement together has simply made a mistake, there's no point having a six month's break clause in a six month tenancy. It would be a minimum of six months though, you're right about that.
    3) If it's a hard copy, simply correct it, initial the correction and sign it.

    Note for 2) regardless of the wording, the landlord's notice to end the tenancy wouldn't end it, break clause or not. If they activate the break clause, a periodic tenancy would start when their break clause ended. If they activate the break clause and serve formal notice at the same time, at the moment the notice would have a six month term, regardless of what it says here.

    Nothing in the tenancy agreement can prevent you leaving at the end of the fixed term without giving notice - you'd be in breach of contract, but there's nothing the landlord could do about it.

    After the six months fixed term, unless you sign another agreement, the break clause and the terms about notice would become void.
    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


      #3
      Hi - thanks for the swift reply - amazing!

      It's a YOTI digital sign TA - perhaps we should tell the LA about it but do you advise that this is done prior to a digital sign please?

      Re "Nothing in the tenancy agreement can prevent you leaving at the end of the fixed term without giving notice - you'd be in breach of contract, but there's nothing the landlord could do about it".

      At which point would we need to give notice to leave at the end of the fixed term?

      One more thing I've noticed - I believe that the LL wish to sell at the end of the fixed term hence the change from 12 to 6. This clause appears to give them free access for viewings :
      "6.2. To allow the Property to be viewed by prior mutually acceptable appointment (which shall not be
      unreasonably withheld), at reasonable times, during normal working hours and at weekends, and upon
      the Tenant being given at least 24 hours’ notice in writing, following a request by any person who is (or
      is acting on behalf of) the Landlord"

      I'm just a little concerned that it would disturb our quiet enjoyment particularly towards the end of the term but does this mean we absolutely have to allow viewings. I know this topic is covered in the sticky but in the current pandemic climate, we don't like the idea of having people around.

      Thanks again.

      Comment


        #4
        It's a reasonable/standard clause, not just for selling. In practice you hold the cards and can set the degree/extent of viewings. In reality most contractual clauses do not bind tenants in any actionable way (which is in part why rents are so high).

        If you absolutely want a 1y fixed term and that was the basis of the holding deposit you could withdraw completely and ask for the deposit back. But probably not much advantage to so doing.

        Comment


          #5
          Originally posted by forest777 View Post
          It's a YOTI digital sign TA - perhaps we should tell the LA about it but do you advise that this is done prior to a digital sign please?
          In which case I'd ask for it to be resent.
          It's probably OK to sign it, and it wouldn't disadvantage you in any way I can think of, but it's better to be right.


          At which point would we need to give notice to leave at the end of the fixed term?
          Because the tenancy has a fixed term, it just ends when the fixed term does.
          So you can actually leave without any notice at all.
          It's a bit of a dick move, but it's perfectly legal.

          If you stay beyond midnight of the last day, a new tenancy begins automatically and the notice for that is set by law, not by the terms of the contract.

          Some tenancy agreements address this by changing the fixed term to be an initial term which is extended by the wording of the agreement, so that the tenancy doesn't actually with the end of the fixed term.

          I'm just a little concerned that it would disturb our quiet enjoyment particularly towards the end of the term but does this mean we absolutely have to allow viewings. I know this topic is covered in the sticky but in the current pandemic climate, we don't like the idea of having people around.
          It's a standard clause, but it's not really enforceable in any meaningful way.
          So you'd just decline any viewings that they want to make.

          In a residential tenancy, you have the right to exclude anyone you wish, including the landlord, and the right conferred by the contract doesn't overcome that right.
          So the landlord would have to go to court to get a court order to compel you to accept viewings and a) they'd never do that and b) they might not succeed if they tried.
          Technically you'd be in breach of contract and they could claim compensation for any reasonably foreseeable loss arising from the breach, but there wouldn't be any.
          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


            #6
            Thanks very much indeed for all the assistance - it's very much appreciated.

            Comment

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