Joint tenancy ended- one tenant using break clause

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    Joint tenancy ended- one tenant using break clause

    If there are 2 tenants in an AST with a six month break clause, and T1 gives the 2 months' required notice to activate the break clause in a one year contract after 5 months, but T2 intends to stay on, what is the legal situation? I gave this notice and it was accepted verbally by my agency (acting on behalf of my landlord). My housemate, T2 had decided at that point to stay on, with one of her friends moving in, and the agency were happy with that.

    But then my housemate changed her mind and decided she wanted to move out too (her friend pulled out of moving in). She had not given notice at the same time as me, and submitted her written notice one month after mine. The agency told her that she had to stay for a further two months as two months' notice was required. She says that at no point did they inform her that my notice twas then withdrawn. They certainly did not inform me!

    Now, 2 weeks before my tenancy was due to end, I have put down a deposit on another flat. I emailed the agency to ask for details of return of my deposit, and they replied to say my notice could no longer be accepted! When I spoke to them they said they had told my housemate this, but she insists that is not the case. They also said my notice had not been accepted in the first place (it had-only verbally though) and did not apply, and I had to stay in the property for the additional month with her. That means I will be paying for 2 properties, or I will have to cancel the new one and lose money, then look for another place for a month later.

    Where does this leave me legally? Did my original notice apply to the entire household? I've read on other posts that if the tenancy is periodic (which it isn't) then I would be ok as my notice applied to all tenants, but otherwise it would not apply. I'm not sure whether the break clause makes a difference though.

    #2
    Confusion reigns here!

    First, a break clause can only be excercised by all the tenants acting in concert. Since, as a matter of law, the notice you gave did not act to bring the tenancy to an end the agent could not accept it. The agent seemed to think that he could, as it were, accept a surrender of half. That is not possible as a joint tenancy is indivisible. It either ends for all the tenants or it does not end at all.

    I think, though, that we can ask whether, notwithstanding that the tenancy continues, you are exonerated from paying any further rent and complying with the terms of the tenancy. The agent purported to accept the notice and, relying on the purported acceptance, you committed yourself to another tenancy. There has to be an argument that you should not have to lose out.

    As to the new arrangement, I think you need to look at that and see if your deposit is in fact lost if you do not go ahead. Exactly what has been done there?

    Comment


      #3
      presumably both tenant's notice should expire on the same day which seems not to be the case here.
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        #4
        Originally posted by Lawcruncher View Post

        I think, though, that we can ask whether, notwithstanding that the tenancy continues, you are exonerated from paying any further rent and complying with the terms of the tenancy. The agent purported to accept the notice and, relying on the purported acceptance, you committed yourself to another tenancy. There has to be an argument that you should not have to lose out.

        As to the new arrangement, I think you need to look at that and see if your deposit is in fact lost if you do not go ahead. Exactly what has been done there?

        I have paid £250 as a holding deposit for the new place. The document I signed says if I pull out then I will lose that money. Either way it looks like I am going to lose at minimum £250. It sounds like I will be better off giving up the new place and looking for somewhere else to move into a month later, rather than risk losing my deposit (over £600) on the current place as I will be liable for the rent.

        Do you think it would be feasible to make a claim against the agency for the money I lose, whichever option I choose?

        Comment


          #5
          Originally posted by House View Post
          presumably both tenant's notice should expire on the same day which seems not to be the case here.
          Not quite.They should both give the same notice, i.e. only serve one notice altogether.

          Comment


            #6
            Originally posted by tierney View Post
            I have paid £250 as a holding deposit for the new place. The document I signed says if I pull out then I will lose that money.
            There has been a lot of discussion on this forum about whether a holding deposit can be non-refundable. In my view it can only be non-refundable if paid as part of a contract to grant a tenancy. If it is no more than an "earnest" it is refundable. It is impossible to be dogmatic without seeing exactly what your document says.

            Making a claim against the agent for £250, if you lose it, is not really feasible. Quite apart from the legal position being confused, you have no written evidence of what the agent said.

            Comment


              #7
              Originally posted by Lawcruncher View Post
              Not quite.They should both give the same notice, i.e. only serve one notice altogether.
              ah okies but this still hasn't happened in the OP's case has it so I'm wondering if the LA could say sorry no valid notice at when the OP's flatmate's notice expires.
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              Comment


                #8
                Originally posted by House View Post
                ah okies but this still hasn't happened in the OP's case has it so I'm wondering if the LA could say sorry no valid notice at when the OP's flatmate's notice expires.
                I fear that that notice is, as you suggest, also invalid.

                Comment


                  #9
                  It seems that the agent led the T to believe that their notice was accepted (which was an error by agent), so the tenant has made financial commitments on the face of this.

                  I hold the agent ( an hence LL) responsible for any loss to the T.

                  Either LL's agent agrees to refund any loss of holding deposit after T had reclaimed as much as possible from new agent.

                  Or they release T from current tenancy

                  It's the LL's agent's choice.
                  All posts in good faith, but do not rely on them

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                    #10
                    Originally posted by Bel View Post
                    It seems that the agent led the T to believe that their notice was accepted (which was an error by agent), so the tenant has made financial commitments on the face of this.

                    I hold the agent ( an hence LL) responsible for any loss to the T.

                    Either LL's agent agrees to refund any loss of holding deposit after T had reclaimed as much as possible from new agent.

                    Or they release T from current tenancy

                    It's the LL's agent's choice.

                    Another person at the agency has now come back and said something different to what she told me yesterday: that my original notice WAS accepted but that my housemate's later notice invalidates my original notice. They still seem to have accepted her notice though, even though only her name was included.

                    Comment


                      #11
                      Originally posted by tierney View Post
                      Another person at the agency has now come back and said something different to what she told me yesterday: that my original notice WAS accepted but that my housemate's later notice invalidates my original notice. They still seem to have accepted her notice though, even though only her name was included.
                      Either your notice was valid or it was not. If it was valid it cannot be retrospectively undone. In fact it was invalid, so the point is academic. However, the agents are clearly not academic, so you may be able to bamboozle them by suggesting that the second notice cannot possibly undo the first notice, which they seem to accept was valid when given.

                      Comment


                        #12
                        Originally posted by tierney View Post
                        Another person at the agency has now come back and said something different to what she told me yesterday: that my original notice WAS accepted but that my housemate's later notice invalidates my original notice. They still seem to have accepted her notice though, even though only her name was included.


                        You really need to go to the top brass and ask them for an explanation and clarification of their position on this, as it puts you in a very awkward position.

                        Go to consumer direct helpline. They may be able to help or CAB. Or Shelter.
                        All posts in good faith, but do not rely on them

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                          #13
                          Originally posted by Lawcruncher View Post
                          Either your notice was valid or it was not. If it was valid it cannot be retrospectively undone. In fact it was invalid, so the point is academic. However, the agents are clearly not academic, so you may be able to bamboozle them by suggesting that the second notice cannot possibly undo the first notice, which they seem to accept was valid when given.
                          I was wondering if what they mean was they accepted the proposal that she could leave if a new tenant was provided to replace her. Since no new tenant is now available, the deal is off.

                          It depends exactly what was said by agents at the time, and if not in writing, harder to prove what intention was.
                          All posts in good faith, but do not rely on them

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                            #14
                            Originally posted by Lawcruncher View Post
                            Not quite.They should both give the same notice, i.e. only serve one notice altogether.
                            This was my written notice:

                            "I would like to give notice that we will be terminating the current contract on 5/12. This is two month's notice and Charlotte will be staying in the property. She may have someone else already to move in. If so, is it possible to end the contract after one month or does it have to be two months?"

                            Because I specifically said "we" will terminate the contract does it make the notice valid for both of us, and in any case did her subsequent notice invalidate it?

                            Comment


                              #15
                              Originally posted by tierney View Post
                              "I would like to give notice that we will be terminating the current contract on 5/12. This is two month's notice and Charlotte will be staying in the property. She may have someone else already to move in. If so, is it possible to end the contract after one month or does it have to be two months?"
                              When you give a notice it needs to be crystal clear so that the person on whom it is served knows precisely what it is that the notice is doing. Obvious errors, for example if you had referred to 5/12/2007 instead of 5/12/2008, are usually allowed, but otherwise the notice needs to be unambiguous.

                              A bit of devil's advocacy:

                              You start with "I" and then go on to "we" which immediately casts doubt on who is giving the notice. You then go on to say that you will be terminating the contract on 5/12 and this could mean (admittedly stretching the meaning a bit) that on 5/12 you will be giving notice and that all you are doing is giving them fair warning. You then go on to say that Charlotte will be staying, which casts doubt on whether the notice (if that is what it is) is after all being given on behalf of Charlotte since, if she wants to stay, why would she be giving notice? You ask then a question which tends to confirm the impression already created that you are not really giving notice. Why would you ask if you can give short notice if the letter is intended to be a notice? If you signed the letter and Charlotte did not, whilst not on its own necessarily fatal, it is another string to the landlord/agent's bow.

                              I appreciate that the previous paragraph may read like a load of clever legal talk, but they are the sort of points that the landord/agent's lawyer will make.

                              What you ought to have done is to have sent a letter referring to the relevant clause in the tenancy agreement and giving notice in accordance with the clause...and no more...and both signed it. You should then have followed the notice up with a letter explaining that Charlotte was keen to stay on and might have someone to take a new tenancy with her.

                              As I said above, if your notice was valid, nothing that happened afterwards could have invalidated it. However, the very fact that she did serve a notice only goes to cast doubt on whether your notice, which is not clear on the point, was given on her behalf.

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