Is this a valid break clause?

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  • Is this a valid break clause?

    Hi everyone,

    I am a joint tenant renting a property for 1 year fixed term which started on 18/9/08. Due to circumstances changing we now want to move out. We have told this to the landlord and have sent notice of out intention to move out in 2 months but they keep saying it is a 1 year fixed term and we can't move out sooner. Am I missing something here? Can you please advise on the below break clause. Any help would be much appreciated:

    SPECIAL TENANCY CONDITIONS

    Break Clause - Mutual


    Notwithstanding the provisions contained within the Tenancy Particulars and relating to the term of the tenancy hereby created it is agreed that either party may terminate this agreement by giving to the other at least two months prior written notice of his intention to so do such notice to be delivered by hand or first class post and shall not expire before 16th September 2009 at which time this Tenancy shall determine absolutely but without prejudice to any claim by either party against the other in respect of any antecedent breach or non observance of the provisions of the Agreement. This is a year fixed period.

  • #2
    What you have is a right to break by giving two months' notice, but the notice cannot expire before the fixed term ends. No good to either landlord or tenant and a waste of ink.

    Comment


    • #3
      Originally posted by Lawcruncher View Post
      What you have is a right to break by giving two months' notice, but the notice cannot expire before the fixed term ends. No good to either landlord or tenant and a waste of ink.
      Not quite. The Break-Clause Notice would expire one day before the fixed term would expire; so L could avoid any statutory continuation tenancy arising. I guess that this consequence is deliberate on L's part!
      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
        I don't like the clause on the grounds that it contains legal jargon and should be in plain English.
        The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

        Comment


        • #5
          Originally posted by Paul_f View Post
          I don't like the clause on the grounds that it contains legal jargon and should be in plain English.
          How do you think it should be re-worded?
          'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

          Comment


          • #6
            I do not think the clause has any legal jargon in it, it is just written in legal language.

            It is clearly a clause that has in it something drawn up by a lawyer, but it has been tinkered with, hopefully not by a lawyer.

            Notwithstanding the provisions contained within the Tenancy Particulars and relating to the term of the tenancy hereby created it is agreed that either party may terminate this agreement by giving to the other at least two months prior written notice of his intention to so do such notice to be delivered by hand or first class post and shall not expire before 16th September 2009 at which time this Tenancy shall determine absolutely but without prejudice to any claim by either party against the other in respect of any antecedent breach or non observance of the provisions of the Agreement. This is a year fixed period.

            We are doing fine up to the red. The red though spoils it. "At which time" can only refer to 16th September 2009. Apparently the tenancy can only end on that date. (The date is, as we know, the next-to-last day of the tenancy so the whole thing is a nonsense anyway, but I'll ignore that.)

            The green is a mystery. Why is it there? The fact that it is there leads me to suspect that the clause is not there as a break clause, but as a botched attempt at inserting a provision requiring the tenant to give notice if he wants to leave before the tenancy become periodic.

            Comment


            • #7
              Antecedent for starters is a legal term which will not be readily understood by a consumer.
              The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

              Comment


              • #8
                Originally posted by Paul_f View Post
                Antecedent for starters is a legal term which will not be readily understood by a consumer.
                Hm. Sort of. Lawyers like the word, but I would not say it is legal jargon.

                Comment


                • #9
                  Originally posted by Lawcruncher View Post
                  Hm. Sort of. Lawyers like the word, but I would not say it is legal jargon.
                  I like it, too. Its more common alternative, 'previous', has a nasty, peevish little ring to it, wouldn't you say? Not to mention unfortunate connotations of criminality.

                  It isn't legal jargon, because it is used in grammatical analysis too, e.g. in explaining that pronouns should refer to the nearest antecedent noun in a a sentence.

                  What's for main and puddings, Paul?
                  'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                  Comment


                  • #10
                    Some more modern precedents use "prior". Not sure it is an exact synonym, but I think it fits the bill.

                    Comment


                    • #11
                      Mmm...come to think of it, there is obviously a grammatical and legal difference between 'antecedent' and 'precedent', but is there a definable difference between 'antecedent', 'preceding' and 'prior'?
                      'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                      Comment


                      • #12
                        Ask any man or woman in the street what they consider 'antecedent' to mean and I bet you will get more 'don't knows' than you will correct answers. The OFT don't like 'joint & several' or 'indemnify' for example without an explanation included so I would say antecedent has no chance of passing the 'test'.
                        The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

                        Comment


                        • #13
                          Originally posted by Paul_f View Post
                          Ask any man or woman in the street what they consider 'antecedent' to mean and I bet you will get more 'don't knows' than you will correct answers. The OFT don't like 'joint & several' or 'indemnify' for example without an explanation included so I would say antecedent has no chance of passing the 'test'.
                          But you know what at least some of us think about the OFT too. Whatever the O and the T stand for, the F is self-explanatory!
                          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
                            Thanks for the replies, I guess that's a useless clause then. Oh well.

                            Comment


                            • #15
                              Originally posted by jeffrey View Post
                              But you know what at least some of us think about the OFT too. Whatever the O and the T stand for, the F is self-explanatory!
                              Legalese is immediately understandable to lawyers who've been immersed in it for years, but many of these words have precise definitions (as pointed out by yourself some time ago) that are unknown and/or somewhat different to conversational English.

                              In one sense that's good because it clears up confusion, but you have to know legalese. For Joe Sixpack it can be bad because they (we) don't know what the hell it means.

                              I have far from the worst vocabulary in the world, I've even been accused of hiding behind long words, but much legal language is virtually impenetrable to me. I suspect it's the same for 99% of folks who sign an AST.

                              Just look at the schmozzle over section 21... all because "we" don't understand the language.

                              So does that make it unfair on consumers? You betcha! We haven't a clue what we're signing.

                              I take your earlier point about possibly losing precision of meaning, but surely Joe and Martha Schmuck have a right to understand their obligations and rights as stated in the contract?

                              I often notice contracts/statutes have an addendum of meanings of words. Perhaps that could be an answer, an addendum assigning precise meanings to words where confusion could arise?

                              Prior means antecedent for eg
                              Now signature free.

                              Comment

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