Help with break clause wording in tenancy agreement

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    Help with break clause wording in tenancy agreement

    Hi all,

    We are nearly 9 months into our 12 month tenancy and I have just accepted a job further away so we are potentially looking to relocate. I was wondering if anyone could help with the wording of our break clause in our contract?

    2.5 Break Clause

    2.5.1 This agreement creates a single tenancy that starts with a fixed element and then becomes periodic. This would normally guarantee both parties the rights and obligations for the fixed term and a minimum of one period. The following two clauses allow either party to terminate the agreement earlier than that date, but not before the end of the fixed term (the date quoted in 1.6.1 as “to and including (date)”).

    2.5.2 The Landlord may bring the tenancy to an end at, or at any time after, 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, or at any time after, 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. While the tenancy is periodic the one month’s written notice must expire the day before a Rent Due Date.

    And the section referencing the fixed term:

    1.6 Term

    1.6.1 The Term shall be from and including 4th January 2021 to and including 3rd January 2022 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.

    1.6.2 The “Term” is to include any periodic continuation of the tenancy beyond the fixed term


    We can't work out if we're able to end the tenancy now with a notice period of one month, as it is after 6 months, or not because of the wording of 2.5.1 ("allow either party to terminate the agreement earlier than that date, but not before the end of the fixed term").


    Many thanks in advance

    #2
    It makes no sense.
    However the agreement would normally be interpreted in your favour, so I would act as if 2.5.1 did not exist and stand your ground.

    Comment


      #3
      The break clause doesn't really do what it appears to do.
      The terminology is misleading.

      This is an agreement that starts with what's described as a fixed term, but it isn't really a "fixed term" in the conventional sense.
      It's really an initial term of 12 months, after which the tenancy continues on a periodic basis.

      Most agreements that start with a fixed term start a new periodic tenancy when the fixed term ends, and this one doesn't - this tenancy continues.

      Usually, a tenant could simply leave the property at the end of the fixed term and no new tenancy would arise.
      In this agreement, that's not the case.

      So the break clause is there to allow the landlord or tenant to end the agreement at the end of the fixed term.
      But the wording is very misleading, because it looks like you can end the agreement after six or seven months, and you can't.
      All you can do is give notice in month 11, to end the tenancy at the end of month 12.

      The problem is that a tenant's notice served during a fixed term probably isn't valid anyway.
      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


        #4
        That seems to be the intention. But does 2.5.1 as it is worded create a condition? The way it is worded it appears to provide no more than an inaccurate summary of the purpose of the following two clauses but does not actually create any additional term/condition by itself - although it is almost certainly intended to.
        Assume I know nothing.

        Comment


          #5
          Thanks all for your replies.
          I've found the same contract online as a 'template contract' but here in 2.5.2 and 2.5.3 it refers to "bring the tenancy to an end at, or at any time after, the expiry of the fixed element", so I wonder if they've maybe changed this within our contract to be 6 months instead and not changed the wording of 2.5.1 accordingly to be in line with it?

          2.5 Break Clause

          2.5.1 This agreement creates a single 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, but not before the end of the fixed element (the date quoted in 1.6.1 as “to and including (date)”).

          2.5.2 The Landlord may bring the tenancy to an end at, or at any time after, the expiry of the fixed element 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 subclause.

          2.5.3 The Tenant may bring the tenancy to an end at, or at any time after, the expiry of the fixed element 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. While the tenancy is periodic the one month’s written notice must expire the day before a Rent Due Date

          Comment


            #6
            It's hard to know what the intention of the edit was (assuming there was an edit).
            But it's not achieved anything.

            In the (presumably) unedited version, all that 2.5.2 and 2.5.3 do is allow the tenant to give notice to end the agreement at the end of the fixed term, which otherwise, as 2.5.1. points out, they wouldn't normally be able to do.
            Whether the contract term is sufficient to overcome the invalidity of a tenant's notice in a fixed term is debatable.

            But, assuming that the landlord did make an edit, and, again presumably, there had to be a reason for them doing that, they might be happy to accept notice earlier than the end of the fixed term - because otherwise their edit hasn't changed anything that I can see.
            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 sarble View Post
              Thanks all for your replies.
              I've found the same contract online as a 'template contract' but here in 2.5.2 and 2.5.3 it refers to "bring the tenancy to an end at, or at any time after, the expiry of the fixed element", so I wonder if they've maybe changed this within our contract to be 6 months instead and not changed the wording
              I suspect you're right that he amended 2.5.2 and 2.5.3 but missed 2.5.1.

              I suggest you serve him the break clause notice now and see what he says. If he says it's not valid then tell him he is welcome to challenge it in court. A judge will almost always go with the interpretation most favourable to the tenant as they are the "junior partner" in the contracting process.

              Comment


                #8
                Thanks all, we spoke to the letting agents and they confirmed it was a 6 month break clause and we could give our one month's notice at any point from now.

                Comment

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