Is this break clause valid using a section 21 notice

[Paragon]

You received the notice on the 24th May (Saturday). What was the date of the notice and when was it posted? Did you have to sign for it or go the post office to take delivery?

The landlord is a bit ignorant if he missed his 60 days by 3 days to activate the 6 month break clause. Having said that, I don't think you can automatically assume that 60 days = 2 months. The minumum would be 30.416666 x 2 = 60.83333 ( based on a 365 day year) I believe 2008 has 366 days.

[blurbunny]

so the landlord CAN use a break clause notice on me but not by using a section 21. that correct? incidently the section 21 notice i recieved does not specify which sub section it relates to, does that make it invalid as well? really not sure about my rights in this situation, the law jargon is very confusing.

[jeffrey]

so the landlord CAN use a break clause notice on me but not by using a section 21. that correct? incidently the section 21 notice i recieved does not specify which sub section it relates to, does that make it invalid as well? really not sure about my rights in this situation, the law jargon is very confusing.

(Sigh) See posts #13 and #15. What else can I say?

[blurbunny]

when brought up with the landlord about the dates being out on the letters he stated i was splitting hairs. i got them to agree to send me the notice again but they said they will only back date a new notice to saturday the 24th may (the day i recieved the original notice by recorded delivery, sent on the 23rd but dated the 19th)

[lorenzo]

when brought up with the landlord about the dates being out on the letters he stated i was splitting hairs. i got them to agree to send me the notice again but they said they will only back date a new notice to saturday the 24th may (the day i recieved the original notice by recorded delivery, sent on the 23rd but dated the 19th)

You could probably cause him a pain in the neck over the valid notice technicalities... and he would probably fully deserve it by the sounds of it, but in the end, it's probably best to move on ASAP and leave him to it.

Who wants an LL like this man apparently is?

[Paragon]

when brought up with the landlord about the dates being out on the letters he stated i was splitting hairs. i got them to agree to send me the notice again but they said they will only back date a new notice to saturday the 24th may (the day i recieved the original notice by recorded delivery, sent on the 23rd but dated the 19th)

I'm sure Jeffrey has won millions of dosh by splitting hairs.

[blurbunny]

thats how im beginning to feel about it all, just to move on. know this may seem a silly question but can i move out earlier than the date they have stated? if my last rent is paid at beginning of july?

[jeffrey]

I'm sure Jeffrey has won millions of dosh by splitting hairs.

If only! Anyway, I've now so few of them (hairs, not millions) that splitting is the least of the problems.

[agent46]

That cannot be true, because s.21 does not work during fixed term. On your logic, therefore, no break clause could ever work.

A s.21 notice is sufficient to activate a break clause during a fixed term; Aylward v. Fawaz [1997] 29 HLR 408 CA. See also Gloucestershire HA v. Phelps 10 Feb 2003, Gloucester CC, May 2003, Legal Action 35

I would actually go further than saying a s.21 notice is merely a sufficient condition of a LL's successful activation of a break clause and suggest that a s.21 notice might in fact be a necessary condition of any such activation, and thus the only way for a LL to operate a break clause in an AST. This is because HA 1988 s.5(2) provides that unless a fixed term tenancy comes to an end by order of the court or some other act by the tenant (ie: surrender or service of their own NTQ), then a statutory periodic tenancy comes into effect. Clearly a fixed term tenancy that has been ended by some act of the LL (ie: activation of a break clause) has not been ended in accordance with s.5(2) and so the logical outcome is either (a) the break clause is simply inoperable, or (b) it does operate and the fixed term is ended in accordance with its terms, but the tenancy continues thereafter as a stautory periodic tenancy. Clearly scenario (b) is the better view.

My advice to any LL wanting to take advantage of a break clause would be to use a s.21 notice and make sure that the terms of both HA 1988 s.21 and the terms of the break clause are strictly adhered to.

[jeffrey]

A s.21 notice is sufficient to activate a break clause during a fixed term.

Please reconcile this with s.21(1)'s wording: "...on or after the coming to an end of an assured shorthold tenancy..."
Did the Courts hold, for instance, that the Break Clause Notice (BCN) makes the tenancy 'end', thereby leaving it open for L to serve under s.21? If so, it's the BCN- not the s.21 Notice- which terminates the AST.

[agent46]

Please reconcile this with s.21(1)'s wording: "...on or after the coming to an end of an assured shorthold tenancy..."
Did the Courts hold, for instance, that the Break Clause Notice (BCN) makes the tenancy 'end', thereby leaving it open for L to serve under s.21? If so, it's the BCN- not the s.21 Notice- which terminates the AST.

Yes, I can see the point of your argument. Unfortunately TBH, I'm unable to spare the time to have a proper read of the cases - I'll have a look later if I get the chance and then re-post.

However, I didn't just dream up the line of argument The first short paragraph of my post was cribbed from a copy of Defending Possession Proceedings (Luba QC et al) I had in my study at home. The bulk of the rest of the argument was me thinking out loud/in print.

I'd agree that the BCN is what ends the tenancy, and it may be the case that the s.21 notice operates as the BCN; nevertheless, the tenancy would then have ended otherwise than by order of the court or act of the tenant and the inescapable conclusion seems to be that a periodic tenancy comes into effect on the expiry of the BCN. With the break clause under consideration here, because it is a 60 day clause, that would lead to a very odd situation where it ends the tenancy a few days before the usual period day, which might have the effect of causing the new periodic tenancy to run on a new period.

Further thoughts/shooting down in flames welcomed....

[agent46]

Here's the relevant extract of Fawaz v. Aylward and another [1996] CA The Times, 15 July 1996. In addition to the ratio itself (which I have underlined), I've also included the references to counsel's submissions on the point.

"
Clause 7 of the lease provided:

"The landlord or the tenant may determine the tenancy hereby created at or at any time after the end of the first six months of the tenancy provided ONE month's prior notice in writing of such desire is given to the other party."

...

...In support of her contention Miss Jones submitted on behalf of the appellant that a break clause is a technical document which must, on its face and on a fair and reasonable construction, do what the lease provides that it is to do. She referred specifically to Hankey v Clavering [1942] 2 KB 326 and passages in support of that proposition. She further contended, following A. & J. Mucklow (Birmingham) Ltd. v Metro-Cammell Weymann Ltd. [1994] EGCS 64, that such a notice must purport to be a break notice and must clearly and unambiguously on its face seek to exercise the break option. Following that authority, she submitted that if the notice failed to do this it would be invalid as a break notice. She submitted that the notice in question was a notice which was designed to be given under s 21(1)(b) for a specific purpose and no other, namely to give an assured shorthold tenant not less than two months' notice of when the landlord required possession. She submitted it was not designed as a break clause notice and could not be construed as such; a separate notice or some further provision on the actual notice served, making clear that it sought to determine the fixed term under the break clause, was required. She submitted that this notice was given expressly pursuant to s 21(1)(b) of the Housing Act 1988 and that in that context it did not validly determine the fixed term, not least because under a tenancy agreement such as this where the fixed term had not expired at the date of the notice it is always open to a landlord to serve notice to determine the fixed term of the tenancy but not to seek possession; in such circumstances the assured shorthold tenancy will then continue on a periodical or statutory basis. She submitted that the notice did not appropriately exclude this possibility.

Miss Jones went on to submit that, whilst a notice under a break clause need not of itself follow verbatim the wording of the break clause, nevertheless it must make clear on its face that the landlord requires to determine the written tenancy agreement; on the face of it this notice does not have that effect.

It was contended on behalf of the respondents that the s 21(1)(b) notice here served constituted a valid determination under the break clause of the fixed term of the tenancy agreement and of the assured shorthold tenancy. It was submitted that the notice is clear both in its meaning and its effect. The notice says, as I have indicated, on behalf of the landlord, "I give you notice that I require possession of the dwelling house ...", the dwelling house then being appropriately identified. It was submitted that it is implicit in those words that the landlord required possession. That being clearly stated, it must follow that he was also seeking to determine the written tenancy agreement pursuant to the provisions of clause 7.

In my view the notice served in the present case is readily distinguishable from the notice served in the case to which Miss Jones referred us, A. and J. Mucklow (Birmingham) Ltd. v Metro-Cammell Weymann Ltd. (above cited). Here the notice specified a specific date within the time span of clause 7, the break clause of the tenancy agreement. The notice states itself to be an exercise of the right to obtain possession. On the face of the notice possession is required: it is not a possible exercise of such a right. Further, the document is clearly a notice to determine the tenancy rather than a request for information, this latter having been held to be the position in the Mucklow case.

I consider that the notice served by the respondents was clear and unambiguous. It indicated in terms that possession of the premises was required. In my view the judge was right to hold, as he did, that it was a valid notice both under clause 7 of the tenancy agreement and under s 21(1)(b). The requirement of possession was only consistent with the determination of the fixed term of the tenancy agreement, with due notice being given under clause 7 - one month - and in respect of s 21(1)(b) - not less than two months." (Cazalet, J)

[jeffrey]

OK. This seems clear enough, I suppose, but I'd always recommend a landlord client- in such circumstances- to serve an explicit BCN.

Interesting, too, that the Court of Appeal did not pronounce upon (and might indeed have received no submission about) the Unfair Terms Regs. Clearly, the case is authority for saying that at least an either-way break clause is NOT unfair (even if a landlord-only clause could be).

[agent46]

OK. This seems clear enough, I suppose, but I'd always recommend a landlord client- in such circumstances- to serve an explicit BCN.

Interesting, too, that the Court of Appeal did not pronounce upon (and might indeed have received no submission about) the Unfair Terms Regs. Clearly, the case is authority for saying that at least an either-way break clause is NOT unfair (even if a landlord-only clause could be).

I think it was only when the OFT were granted powers of enforcement under the 1999 regs (which were an update of the 1994 regs of the same name) that anyone really sat up and took any notice of them (the regs, not the OFT, that is).

For that reason, I'm not sure it would be a great argument for this case being authority for the proposition that bilateral break clauses are not unfair. I prefer the simpler argument based on the plain words of the regs (significant imbalance in the rights and obligations of the parties) as I've argued in other threads.