Six Month Break Clause - is this effective?

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    Six Month Break Clause - is this effective?

    Hi there

    I have a tenant in a property on a 12 month tenancy (from 10th Oct 08 to 9th Oct 09).

    I would like to serve notice and have looked at the AST, which has this clause:

    Tenancy break Clause — Applicable for contracts of 11 months and 28 days + This Clause gives the landlord or tenant, the opportunity to break the tenancy agreement where the Tenancy Contractual period exceeds 11 months and 28 days (normally known as a 12 month contract). It can be terminated by either party giving the appropriate written notice as detailed below:


    1. The Landlord must give the Tenant 2 months notice at the anniversary of the rental due date. This can be served ONLY at the 6 months stage and will end the tenancy at 8 months.



    I would like to serve notice for 10th May 09, which is actualy month 7. is this ok?

    Also, does the tenant have any rights to refuse to move out after the 2 month notice period is up, or do they have to leave?

    Many thanks for anyone's help out there....

    #2
    It appears you have missed the opportunity according to the wording, and you are stuck with the fixed term.

    I often wonder if landlords actually write in these details themselves, or just accept what has been presented to them by a third party such as an agent.
    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


      #3
      Whoever drafted the clause should have imprecations heaped heavily on his head.

      1. The Landlord must give the Tenant 2 months notice at the anniversary of the rental due date. This can be served ONLY at the 6 months stage and will end the tenancy at 8 months.

      Hopefully the agreement says somewhere in it what the "rental due date" is. Whatever the date is, the notice can only be given a year later according to the first sentence. Assuming (though with this type of drafting one can never be sure) that the "rental due date" is not a date before the tenancy began, the notice can only be served at the very earliest on the day after the tenancy expires, by which time it will not be needed.

      The second sentence though says that the notice can only be given "at the 6 months' stage", which presumably means the last day of the first six months of the term. So, unless the "rental due date" is six months before the tenancy began, this will be a different date from that specified in the first sentence. If we are to favour the second sentence on the grounds that the first sentence cannot possibly be applicable, then the landlord only has one day on which to serve the notice.

      Comment


        #4
        Thank you both for your quick responses.

        Yes, this is a standard AST drafted by an agent and I have 6 properties with them!! I loosely interpreted as a 6 month break clause but now am seriously annoyed that it is so badly written.
        The agent has advised that it's supposed to mean that I can serve notice on 10th of the month (anniversary of rental due date!!) any month after month six.
        Now I suspect that any canny tenant can get their lawyer to pull this apart.


        The actual reason that I wanted to give notice is that we are selling the flat and completion should be in about 8 weeks time as our buyer was happy for the two months notice to be served. Does this mean we now cant give notice to the tennat at all?
        Thanks again.

        Comment


          #5
          You have some serious problems here. I have checked several online definitions of "anniversary" and it confirmed what I already knew - "anniversary" refers to a yearly recurrence. Apart from that, the clause clearly says the notice may only be exercised "at the six month stage".

          If there is one thing that can be said about break clauses it is that they must be exercised strictly in accordance with their terms - assuming of course that you can actually work out what the terms are. Break clauses, since they confer an important right, need to be clear.

          Even if the clause were crystal clear, that would not be an end of the matter. The execrcise of a break clause in an AST only brings to an end the fixed term. As a matter of law, once the fixed term comes to an end a statutory periodic tenancy arises. If the tenant does not go quietly, you need a court order. Accordingly, you should not contract to sell the property with vacant possession until the tenancy has come to an end and the tenant has left.

          Go and heap imprecations on the head of the letting agent.

          Comment


            #6
            Originally posted by Lawcruncher View Post

            Go and heap imprecations on the head of the letting agent.
            Of any particular colour, smell, texture or consistency?
            '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


              #7
              For the record, when I said:

              The exercise of a break clause in an AST only brings to an end the fixed term.
              I meant: The exercise by a landlord of a break clause in an AST only brings to an end the fixed term.

              Comment


                #8
                Originally posted by mind the gap View Post
                Of any particular colour, smell, texture or consistency?
                I had in mind something Verdian. Mezzo-soprano, arm outstretched, full orchestra:

                Ti maledico! Ti maledico!

                Comment


                  #9
                  Originally posted by Lawcruncher View Post
                  I had in mind something Verdian. Mezzo-soprano, arm outstretched, full orchestra:

                  Ti maledico! Ti maledico!

                  Cool! And apparel - dressing gown with stars on, or something more formal?
                  '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
                    Something long and purple and with a thick gold chain.

                    Comment


                      #11
                      Originally posted by mind the gap View Post
                      Cool! And apparel - dressing gown with stars on, or something more formal?
                      Hearses for curses...
                      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).

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