section 21 possession claim using invalid break clause

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    section 21 possession claim using invalid break clause

    Hi, I am new to the site and wondered if anybody could help with an ambiguous break clause. I have a fixed term tenancy which runs from 25 April 2009 to 24 april 2010 for a term of a year less a day. It has been renewed twice - from 25 April 2007 - 24 April 2008, and from 25 April 2008 - 24 April 2009, and the original terms of the tenancy were agreed via Managing Agents in April 2007 who drafted up the 2007 Agreement.

    I have just received in the post a section 21 claim for possession based on a section 21 notice dated and served 26th October, asking me to vacate the property on 28 December 2009. The Landlord cites as ground for possession the following break clause in the 2009 Tenancy Agreement:

    1. "The Landlord/Tenant may bring the tenancy to an end at any time (but not a day earlier than six months from the commencement date of this agreement or the expiration of the term, whichever shall be the latter) by giving the Landlord/Tenant not less than two months' written notice"

    The possession claim then goes on to state that a reasonable person would take this to mean that the Break clause should be contrued as follows:
    "the Landlord/Tenant may bring the tenancy to an end at any time (but not a day earlier than 6 months from the commencement date of this agreement or the commencement of the term whichever shall be the latter) by giving the Landlord/Tenant not less than two months written notice"

    Hence the Landlord can ask the Tenant to leave at any time after the six month point of the lease.

    I find both break clauses unclear and neither clearly reflects the intention of the parties when they negotiated the tenancy terms prior to entering the 2007 tenancy agreement on April 25 2007.

    it was agreed by the Landlord and Tenant prior to moving into the property in April 2007 that the Tenancy would be a 1 year fixed term with one 6 month break clause. The break clause read as follows:
    "Term: for the term of one year less a day commencing on 25 April 2007 with a six month break clause"

    This break clause was then unilaterally changed to point 1 above in the April 2008 - April 2009 agreement by the landlord who did not wish to involve the Managing Agents again, (and drafted the clause himself) and remained the same for the April 2009 agreement.

    However, the intention of the parties always remained the same as no new break clause was ever agreed. When I signed the lease I just assumed that there was only one break clause at six months, i.e. 25 October 2009.

    My question is how would the court interpret the 2009 break clause, as the Landlord is now arguing that the parties subsequently agreed to a break clause which permits either party to terminate the lease at any time after 6 months, but my interpretation is and has always been that there is only one valid break point in the term, ie, the 6 month point of 25 October, which is actioned by giving 2 months written notice, and hence the expiry date in the section 21 notice is invalid.

    I did not vacate the property on 28 December, and now the Landlord is also claiming for double rent from 28 December under 1730 Act, however, I thought that this act only applies to leases of a term of at least a year, and my lease is for a year less a day.

    I would be grateful if someone could give me a brief answer, as am worried about possession/eviction on 22nd Feb which is the hearing date.
    Many thanks

    #2
    I am inclined to think the break clause is invalid - to me it is clear that the 'expiration of the term' is the latter.

    six months from the commencement date of this agreement
    or
    the expiration of the term
    With regard to eviction - IF he wins (I doubt) then judge will give you 14 days. If you're not gone within 14 days the landlord will have to organise official court bailiffs - another fortnight if he's lucky. So you should have a bit of time to sort yourself out.

    The Distresses For Rent Act 1737 (s18) only applies if the tenant gives notice and then stays beyond. It does not apply in this case.

    Comment


      #3
      Thank you for your response. Much appreciated.

      Comment


        #4
        "The Landlord/Tenant may bring the tenancy to an end at any time (but not a day earlier than six months from the commencement date of this agreement or the expiration of the term, whichever shall be the latter) by giving the Landlord/Tenant not less than two months' written notice".

        This is not ambiguous, it just produces the absurd result that the right to break may only be exercised to take effect on the last day of the fixed term, or indeed the even absurder result if the term was less than six months, on a date after the fixed term had expired. The phrase "whichever shall be the later" should only be used where at least one of the dates is unknown at the time the agreement was known. In this case both the "commencement date of this agreement" and "the expiration of the term" must have been known when the agreement was signed. It is just the same as saying something like "not earlier than 1st July 2010 or 1st November 2010 whichever is the later."

        Where a clause is ambiguous the court may interpret it to produce the most reasonable result, but where the clause is not ambiguous but produces an absurd result the person hoping to rely on it cannot rewrite it.

        Comment


          #5
          Thank you very much for your advice - Much appreciated.

          Comment

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