Appropriate notice procedure

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    Appropriate notice procedure

    I appreciate this is covered many times on other threads, but really trying to get this clear in my head:

    Have tenants on a 12 month AST commenced 6 Feb 2010.

    However-AST has a break clause after 6 months.

    tenants are dodgy and behind on rent (though not yet 2 months),but simply wish to get them out-and so wish to use the break clause.

    To get the procedure right-is it simply a case of writing to them advising them-but also -'attaching' a copy of a S21 notice ?

    Many thanks in anticipation of advice

    #2
    No need for the letter, just serve the s21 notice. Alternatively, your s21 notice can be a letter, providing it has all the required information.

    Comment


      #3
      Originally posted by michaelmichael View Post
      tenants are dodgy and behind on rent (though not yet 2 months),but simply wish to get them out-and so wish to use the break clause.
      You say they are 'not yet 2 months' behind. If they have missed 1 month's rent and they do not pay on the following rent due date, then that is 2 months owed. You would be able to issue a S8 grounds 8/10/11 on those grounds. Don't wait until the full two months have elapsed.
      I offer no guarantee that anything I say is correct. wysiwyg

      Comment


        #4
        Originally posted by michaelmichael View Post
        To get the procedure right-is it simply a case of writing to them advising them-but also -'attaching' a copy of a S21 notice ?
        What is the exact wording of the break clause?

        Comment


          #5
          Be careful a section 21 notice may not be sufficient to operate a break clause.

          As Westminster states we need to know the wording of the break clause.

          A section 21 notice is not going to be much use to you given that the fixed term will not expire until Feb 2011.
          PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

          Comment


            #6
            Originally posted by Paul Gibbs View Post
            A section 21 notice is not going to be much use to you given that the fixed term will not expire until Feb 2011.
            But if a correct Break clause Notice is served, it ends the fixed term; whereupon a s.21(4)(a) Notice can be served at once.
            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


              #7
              Thanks for responses:

              wording is:



              .... descibed in the inventory which has been signed by or on behalf of the parties and annexed here to hold for a term from

              twelve noon on the 7th february 2010 to

              twelve noon on the 6th february 2011

              but subject to earlier determination as set out in this Agreement.

              The term of this tenancy is fixed for a term of 6 (six)months (the said term from the 7th February 2010.


              .....the landlord must give two calender months previous notice in writing which cannot expire before the end of the fixed term.



              Many thanks-again-look forward to further advice-i.e do we need to issue a S21 or is just a letter sufficient to request they leave by twelve noon on 6th August on ?
              (and do we need to issue it and ensure it is received by the tenants before 6th June to give a full clear two months notice ?)

              Comment


                #8
                There can't be two fixed terms.

                One from 7th Feb 2010 - 6th Feb 2011 (which is 12 months), and one for 6 months as from 7th Feb 2010.

                And where's the bit about earlier determination?

                Comment


                  #9
                  I am sure I have heard that where there are conflicting terms, a court would decide on the one most preferential to the consumer. In this case it would be a fixed term of 12 months, unless THEY wanted to move, in which case it would be the 6 month option.

                  Comment


                    #10
                    Originally posted by Snorkerz View Post
                    I am sure I have heard that where there are conflicting terms, a court would decide on the one most preferential to the consumer. In this case it would be a fixed term of 12 months, unless THEY wanted to move, in which case it would be the 6 month option.
                    Not sure about that! I recall that a provision appearing later is preferred to an inconsistent provision appearing earlier in the document, on the archaic assumption that- whilst they were 'writing-out' the document- the parties are taken as having changed their minds!
                    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


                      #11
                      Originally posted by Snorkerz View Post
                      I am sure I have heard that where there are conflicting terms, a court would decide on the one most preferential to the consumer. In this case it would be a fixed term of 12 months, unless THEY wanted to move, in which case it would be the 6 month option.
                      I think you are referring to the contra proferentem rule.
                      PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

                      Comment


                        #12
                        Originally posted by Paul Gibbs View Post
                        I think you are referring to the contra proferentem rule.
                        ...which, briefly, means that the burden of proof is on the person seeking to rely on a clause that he/she drew.
                        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


                          #13
                          Thanks for replies:

                          so notwithstanding that there may be an inconsistency in the document;i think we need to take a chance that second (six month term applies).

                          Thus-do we simply write to tenants and 'give notice'-or write and accompany with a S21 ?

                          Ironically-at current rate-by early august they will be over 2 months behind on rent anyway-but for now -just trying to 'ease them out' without being too provocative, and simnply wish to concentrate and getting them out for 6th August and best way to proceed.

                          Advice as ever appreciated

                          we'll worry about recovering the rent shortfall later-

                          Comment


                            #14
                            Originally posted by michaelmichael View Post
                            so notwithstanding that there may be an inconsistency in the document;i think we need to take a chance that second (six month term applies).
                            Does this mean there is nothing in the tenancy agreement which this phrase
                            Originally posted by michaelmichael View Post
                            but subject to earlier determination as set out in this Agreement.
                            refers to? i.e. nothing is 'set out'.

                            Thus-do we simply write to tenants and 'give notice'-or write and accompany with a S21 ?
                            If there is an actual break clause, (and you haven't provided the wording if there is), then it ought to say how the break clause can be exercised; and if it says how, and if it is clearly drafted, this would answer the question of whether a s.21 is sufficient in itself or not.

                            If there isn't a break clause, then an accompanying letter will serve no purpose; you'll just be dependent on whether the court decides the fixed term is six or 12 months. And that seems to be anyone's guess.

                            Comment


                              #15
                              Originally posted by jeffrey View Post
                              ...which, briefly, means that the burden of proof is on the person seeking to rely on a clause that he/she drew.
                              I understood it to mean that where a contractual clause is ambiguous, it is construed against the party who imposed it into the contract.
                              PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

                              Comment

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