AST clause questions

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    AST clause questions

    Hi, I have a few questions regarding AST clauses and an AST going periodic.

    1. Is it possible to put a clause in an AST that stipulates the rent will be increased by X% after the first 12 months? So if it is a 12 month fixed term agreement and it then goes periodic - the 13th month’s rent will have to be at the increased level?


    2. Is it possible to put a clause in an AST that stipulates that if the tenants room is not kept neatly (“neatly” defined as clothes not lying on the floor and/or bed not unmade) when viewings for the room are being conducted or access is denied to the room (after sufficient notice is given) the tenant will forfeit £100 of their deposit.


    3. Is it possible to put a clause in an AST that stipulates that the two month notice period that is required per the lease agreement is not allowed to expire at the end of November or December? Obviously these are quiet months to re-rent to I don’t want tenants moving out during this time. If they are on a periodic tenancy will this apply if I stipulate it in the lease agreement that notice cannot expire in these months?


    4. If I sign a 12 month fixed-term AST, do the tenants have to definitely stay for the 12 months? I know the shortest period an AST can be taken out is 6 months but can they give notice after 6 months if there is no break clause and they are under the 12 month fixed-term agreement?


    5. If under point 4 I include a break clause that stipulates that they may break the agreement after 6 months of tenancy if they give 2 months notice in writing but this notice cannot expire in the months of November or December. Is this a legally valid clause (with reference to the months)?

    Many thanks for the assistance.

    #2
    1. Yes, whether the letting's fixed term is for twelve months or more.
    2. Yes, but how would you define "neat" objectively? It's really rather too vague for satisfactory use in an AST.
    3. Why allow termination by T's notice at all?
    4. No (they can go whenever they want, and anyway there is NO minimum six-month requirement as from 1997) BUT they still have to pay rent to end of fixed term unless:
    a. there is a break clause that T is given and can use;
    b. you waive rent from when they leave (but they cannot force you to); or
    c. you accept their implied surrender AND successfully re-let (i.e. date from when T2 is liable for rent when T1 stops being liable).
    5. Yes, but see reply 3.
    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


      #3
      Hi Jeffrey,

      Thanks for the prompt reply. I would just like to clarify:

      1. So if it is a 12 or more month contract, I can put in a rent increase clause that states rent goes up when it becomes periodic (i.e. if 12 month, at the end of the 12 months)?

      2. Do you have a better suggestion to phrase in, neat is subjective I agree, maybe if one states that if clothes are left on floor or bed unmade when viewing the room then they lose some deposit

      3. Sorry but I do not understand the answer. Basically I don't want them to be able to move out in December or January. Is it possible to state that their statutory notice is not allowed to expire at the end of months November or DEcember? (assuming they have ended their fixed term tenancy and I have not re-signed them, think it is termed that they are now on a periodic tenancy). Usually they can just give a month's notice to end the tenancy but I dont want them moving in December or January.

      Comment


        #4
        As a tenant I would not sign a contract with number 2 contained in it. It makes all sorts of assumptions.

        Comment


          #5
          Originally posted by mensrichard View Post
          1. Is it possible to put a clause in an AST that stipulates the rent will be increased by X% after the first 12 months? So if it is a 12 month fixed term agreement and it then goes periodic - the 13th month’s rent will have to be at the increased level?
          There is a potential trap here. If you grant a fixed term tenancy the terms relate to the fixed term alone. Any periodic tenancy that arises after is on the same terms that apply immediately before the end of the tenancy except to the extent that they are incompatible with a periodic tenancy. One of the terms is the amount of rent and the monthly rent payable at the end of the tenancy will be carried forward. So, you cannot grant a fixed term and say what the rent will be when after the fixed term comes to an end. The way round this is to grant a thirteen month term and to provide for the rent to increase at hte beginning of the thirteenth month


          Originally posted by mensrichard View Post
          2. Is it possible to put a clause in an AST that stipulates that if the tenants room is not kept neatly (“neatly” defined as clothes not lying on the floor and/or bed not unmade) when viewings for the room are being conducted or access is denied to the room (after sufficient notice is given) the tenant will forfeit £100 of their deposit.
          This will almost certainly be construed as a contractual penalty. You are seeking compensation in a situation where you incur no loss. Forget the idea.


          Originally posted by mensrichard View Post
          3. Is it possible to put a clause in an AST that stipulates that the two month notice period that is required per the lease agreement is not allowed to expire at the end of November or December? Obviously these are quiet months to re-rent to I don’t want tenants moving out during this time. If they are on a periodic tenancy will this apply if I stipulate it in the lease agreement that notice cannot expire in these months?
          I assume you are talking about notice to be given the after the fixed term comes to an end. I repeat that if you grant a fixed term tenancy the terms relate to the fixed term alone. You cannot fix notice terms relating to any statutory periodic tenancy that may comes into existence when the fixed term expires. Of course you can provide in the tenancy agreement for a periodic tenancy to arise when the fixed term comes to an end, but if you are going to say that the tenancy continues from month to month then a month's notice is all the tenant needs to give and you cannot provide for different length notice at different times of the year


          Originally posted by mensrichard View Post
          4. If I sign a 12 month fixed-term AST, do the tenants have to definitely stay for the 12 months? I know the shortest period an AST can be taken out is 6 months but can they give notice after 6 months if there is no break clause and they are under the 12 month fixed-term agreement?
          Unles you agree a break clause, both parties are committed for the length of term they sign for


          Originally posted by mensrichard View Post
          5. If under point 4 I include a break clause that stipulates that they may break the agreement after 6 months of tenancy if they give 2 months notice in writing but this notice cannot expire in the months of November or December. Is this a legally valid clause (with reference to the months)?
          Yes.

          ***

          May I observe that you are really trying to complicate things. When it comes to ASTs it is better to keep life simple. The sort of things you are proposing would tax the drafting skills of even an experienced landlord and tenant lawyer.

          Comment


            #6
            Originally posted by Lawcruncher View Post

            May I observe that you are really trying to complicate things. When it comes to ASTs it is better to keep life simple. The sort of things you are proposing would tax the drafting skills of even an experienced landlord and tenant lawyer.
            Quite right.

            The acronym KISS applies -

            Keep
            It
            Simple
            Stupid (I'm not implying anything BTW)
            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


              #7
              Originally posted by Pelican eats pigeon View Post
              As a tenant I would not sign a contract with number 2 contained in it.
              Me neither. Although I suppose one could make the room look homely by leaving magazines and coffee mugs on the floor instead of clothes
              ~~~~~

              Comment

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