Is this break clause valid using a section 21 notice

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Is this break clause valid using a section 21 notice

    I began a 12 month fixed AST on 5/10/07. After only 5 months I received an abusive phone call from the LL wanting to raise the rent from £675 pcm to £725 pcm. I refused as did many of the other tenants within the block. I've heard nothing until, sat 24/5/08, when i received a section 21 notice of possession, which states i need to move out by the 19/7/08 unless i pay £775 pcm + a renewal fee of £300 to cover the LL's costs.
    After looking into section 21 we understood that this could only be served 2 months from the end of my 12 month ast contract. After phoning the landlord representatives, they informed me that there is a break clause in my contract. Here is the clause:

    v. the Landlord may terminate this agreement by giving not less than 60 days notice in writing to the Tenant and upon the expiration of such notice this Tenancy Agreement and everything herein shall cease subject nevertheless to the rights of the Parties hereto in respect of any antecedent breach or non observance of the covenants or stipulations herein contained and so that such notice may not be served prior to 5th day of April 2008.

    The LL's representative agrees i have not breached my contract in any way. It is simply because the landlord wants more money. Is this clause valid to terminate my AST in this way, while using the section 21?

    #2
    The language in that clause is fairly impenetrable legalese. IIRC this renders it potentially unfair.

    Also I suspect even if valid, S21 is not the correct notice in such instance.

    Warning: BWTFDIK
    Now signature free.

    Comment


      #3
      1. As the letting is for a year, s.21 cannot give vacant possession during the term.
      2. The break clause is not so incomprehensible as to be unusable.
      3. L is entitled to serve a Break Clause Notice at any time after the first six months and has now done so.
      4. The rent issue is irrelevant to this.
      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


        #4
        so are you saying that they are within their right to terminate my contract usng the abovementioned break clause? but the section 21 notice is not the correct way of doing it? if this is not the correct notice type, could you advise me on the correct way they should be doing this? thank you

        Comment


          #5
          It would appear the LL can rely on the break clause, however, the LL has not complied with HA 1988 s.21 in that he served the notice on 24/5, but is seeking possession from 19/7. This is less than 2 months, which invalidates the notice.
          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


            #6
            Originally posted by jeffrey View Post
            2. The break clause is not so incomprehensible as to be unusable.
            Hi jeffrey,

            Not withstanding the other points, I doubt whether the clause would be understandable to 95% of the population. Of course it is probably perfectly simple and clear to those in the legal profession, but not me; and I am well acquainted with professional jargon in my own field, which would befuddle even you (that is not intended as a sleight, merely as an illustration).

            What does it mean exactly?

            http://www.plainenglish.co.uk/consumercontracts.htm

            Cheers
            Now signature free.

            Comment


              #7
              Originally posted by lorenzo View Post
              Hi jeffrey,

              Not withstanding the other points, I doubt whether the clause would be understandable to 95% of the population. Of course it is probably perfectly simple and clear to those in the legal profession, but not me; and I am well acquainted with professional jargon in my own field, which would befuddle even you (that is not intended as a sleight, merely as an illustration).

              What does it mean exactly?

              http://www.plainenglish.co.uk/consumercontracts.htm

              Cheers
              It means that after 5th April 60 days notice can be given by the LL to the tenant to end the agreement and after those 60 days have expired, the tenancy will in fact end. However, the rights of either party to seek a remedy for any breaches of tenancy that happened before then will continue.


              Further thoughts....

              It appears this was a unilateral break clause.

              Did anyone mention unfair terms yet?
              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


                #8
                no unfair terms mentioned as far as im aware. do you mean have i mentioned unfair terms or the landlord? i'm not quite clear of what you are saying . could you elaborate further please. thanks

                Comment


                  #9
                  Originally posted by lorenzo View Post
                  The language in that clause is fairly impenetrable legalese. IIRC this renders it potentially unfair.
                  Originally posted by agent46 View Post
                  Further thoughts....

                  It appears this was a unilateral break clause.

                  Did anyone mention unfair terms yet?
                  Yes me, but because of the plain English campaign.

                  But it seems there are now two points that make it potentially unfair.
                  Now signature free.

                  Comment


                    #10
                    Originally posted by blurbunny View Post
                    no unfair terms mentioned as far as im aware. do you mean have i mentioned unfair terms or the landlord? i'm not quite clear of what you are saying . could you elaborate further please. thanks
                    Sorry - I was being rather obtuse.

                    By the Unfair Terms in Consumer Contracts Regulations 1999 any term which is not individually negotiated and which causes a significant imbalance in the rights and obligations of the parties may be a unfair term, and thus unenforceable.

                    In this case:

                    1) If you do not have a broadly similar right to end the tenancy early (ie: significant imbalance of rights)

                    and

                    2) If the break clause formed part of a standard form tenancy and was not bargained over separately (ie: not individually negotiated)

                    Then the break clause may be an unfair term.

                    In any case, I don't think the LL can rely on the s.21 notice as he has given less than 2 months notice as required under the HA 1988.
                    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


                      #11
                      Originally posted by lorenzo View Post
                      Yes me, but because of the plain English campaign.

                      But it seems there are now two points that make it potentially unfair.
                      Point 1 (that the wording is technical): I doubt that this argument will invalidate the clause.
                      Point 2 (that only L has a termination right): this may permit T some room to argue a lack of balance - and so that it's unfair- unless L and T individually negotiated the clause (or whole Agreement) which would mean that T has no further right to claim unfairness.
                      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


                        #12
                        i have in effect the same clause on the contract as the landlord has - the tenant can terminate clause . sorry wasnt clear on that.

                        so they are completely within their rights then?

                        using the section 21??

                        Comment


                          #13
                          Originally posted by blurbunny View Post
                          i have in effect the same clause on the contract as the landlord has - the tenant can terminate clause . sorry wasnt clear on that.

                          so they are completely within their rights then?
                          Yes, in my opinion.

                          Originally posted by blurbunny View Post
                          ...using the section 21??
                          No. As I explained, s.21 is not a break-clause-related provision. L can serve a s.21 Notice, sure, but no Possession Order under it could operate during the fixed term. L really needs to serve only a Break Clause Notice- which, I think, has not yet been done validly- and the result so far is that your tenancy will continue unless and until L does just that. He has to give at least 60 days' notice to you- nothing to do with s.21's two-month requirement, despite the final bit of agent46's post #10!
                          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


                            #14
                            Originally posted by jeffrey View Post
                            He has to give at least 60 days' notice to you- nothing to do with s.21's two-month requirement, despite the final bit of agent46's post #10!
                            My view of this is that whilst at common law the LL has complied with the terms of the break clause, the only way in practice the LL can actually operate the break clause is to use a s.21 notice. And HA 1988 s.21 requires 2 months notice.

                            In summary, although the LL has complied with the strict terms of the break clause, he won't be able to rely on his s.21 notice to achieve possession.
                            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
                              Originally posted by agent46 View Post
                              My view of this is that whilst at common law the LL has complied with the terms of the break clause, the only way in practice the LL can actually operate the break clause is to use a s.21 notice. And HA 1988 s.21 requires 2 months notice.

                              In summary, although the LL has complied with the strict terms of the break clause, he won't be able to rely on his s.21 notice to achieve possession.
                              That cannot be true, because s.21 does not work during fixed term. On your logic, therefore, no break clause could ever work.
                              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

                              Latest Activity

                              Collapse

                              • Reply to Are they my lodgers or tenants?
                                by theartfullodger
                                Tenants. Moving back in won't change that.

                                How many occupants do you have please?
                                06-12-2021, 22:53 PM
                              • Are they my lodgers or tenants?
                                by Livingonaprayer
                                Hi all.
                                I bought a house, lived in it for a few months, then had friends ask me if they could move in as had to leave their property and were struggling to find somewhere with their dog. I agreed and drew up lodging agreement and they moved in.
                                Unfortunately our dogs did not get on, and...
                                06-12-2021, 20:46 PM
                              • Reply to Am I a lodger or a tenant?
                                by AndrewDod
                                If that were so straightforwardly the case then I would easily be able to a secure a tenancy for my friend's daughter (D) who has zero credit rating, and zero ability to pay rent.

                                I would take a 6M tenancy myself, immediately grant a 4 year tenancy at quarter my original rent to D, let...
                                06-12-2021, 21:53 PM
                              • Am I a lodger or a tenant?
                                by Bert1e
                                Hello, I have a question about my legal status in private rented accommodation.

                                I live in a private rented house. The entire house is rented from the landlord by one individual (let's call her Sara). Sara has a bedroom in the house and a lot of stuff in the cupboards all around the house....
                                28-11-2021, 12:13 PM
                              • Reply to Tenancy issues - No Deposit Scheme, demanding deposit back
                                by alice123
                                I'm sorry you are in this situation , from what i have heard from someone these 'no win no fee' type of 'solicitors' take a massive chunk out of any claim for their own fees , which would leave your tenant with rather less money that he/she would have anticipated.

                                One of the reasons why...
                                06-12-2021, 21:13 PM
                              • Tenancy issues - No Deposit Scheme, demanding deposit back
                                by llplug
                                I am a private landlord who has not put tenants deposit into Deposit scheme - I now understand the errors of my ways, put my hand up, my fault, been lax

                                Tenant has had a number of minor issues (sink drainage, plug not working, bedroom light not working) which I have made an effort to rectify,...
                                19-11-2021, 15:49 PM
                              • Reply to Am I a lodger or a tenant?
                                by KTC
                                The term lawful here applies to private landlord. It's a term that does not just exist within the Housing Act 1988, but also Rent Act 1977, and probably other places. In this context, it basically means as the Shelter page summarised, did the mesne tenant have permission to sublet. That section of the...
                                06-12-2021, 21:11 PM
                              • Reply to Accelerated possession order
                                by Hudson01
                                This is a good point..... also, not wishing to tempt fate, but with the increase in Covid type restrictions is it beyond thinking that we may have another xmas ban on evictions ???? I do not believe it is needed but you know what the lefties are like....
                                06-12-2021, 21:01 PM
                              • Accelerated possession order
                                by Pariah81
                                A tenant has refused to leave the property at the end of her tenancy and has now asked to be evicted as in her words 'that will make her eligible for a council house'.

                                I am sending an accelerated possession order through the courts but whilst completed the forms noticed two apparent errors...
                                05-12-2021, 18:12 PM
                              • Reply to Accelerated possession order
                                by L4NDLORD
                                this is not a great time to try to get possession, I would recommend that you tolerate them a bit longer. The Judge is not going to be sympathetic and besides these cases are going to take a long time to come to Court.
                                06-12-2021, 20:55 PM
                              Working...
                              X