Appropriate notice procedure

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  • westminster
    replied
    Originally posted by michaelmichael View Post
    You are of course correct westminster -and thanks for clarifying and making it succinct-genuinely appreciated
    You're welcome, and good luck. BTW, I follow a legal blog written by a firm of reputable, specialist landlord & tenant solicitors, and they've just started selling a few documents/forms online, including a *break clause*. Only £5 +VAT, so although it's only a simple paragraph, it'd be worth it, I reckon, given the number of times we hear tales of unenforceable break clauses on the forum

    http://www.painsmith.co.uk/Shop/Shop-_Clauses

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  • michaelmichael
    replied
    You are of course correct westminster -and thanks for clarifying and making it succinct-genuinely appreciated

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  • westminster
    replied
    It still doesn't say what you want it to say. There are two fixed terms stated and it goes on to say "the landlord must give two calendar months previous notice in writing which cannot expire before the end of the fixed term". A break clause should, for a start, allow either LL or T to exercise the clause, and to exercise it before the end of the fixed term (not create a fixed term within a fixed term) - otherwise it's not a break clause, is it?

    It looks to me like a bad cut 'n' paste job, with someone adding the second bit copied from another agreement, thinking it was some form of break clause.

    .... 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.

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  • michaelmichael
    replied
    Just looked at the agreement again-and then gone back to my post in this thread-post no 7 -where i set out the wording of the agreement:

    it may not be that clear but the wording is:


    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 second paragraph follows on from the para above-and whilst arguably there should be a colon after Agreement in the first para,and not a full stop- the dates of the earlier determination referred to are the term of 6 months from 7th feb-as per the second para-does that make sense ? so there is in fact a sentence and indeed specific dates which do directly relate to the 'earlier determination'

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  • michaelmichael
    replied
    Cheers guys.

    You have of course identified the 'missing link' which we did not spot-determination of what ?

    Seems we need to plough on regardless-feeling uncomfortable about the outcome-but give them notice and keep fingers crossed it works out in our favour .

    They will be 2 months behind in rent by 6th August anyway-so if necessary-hopefully have that to fall back on.

    We'll see what happens !!

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  • jeffrey
    replied
    Originally posted by Paul Gibbs View Post
    I understood it to mean that where a contractual clause is ambiguous, it is construed against the party who imposed it into the contract.
    Yes- you've rephrased my post but to like effect.

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  • westminster
    replied
    Originally posted by Paul Gibbs View Post
    I understood it to mean that where a contractual clause is ambiguous, it is construed against the party who imposed it into the contract.
    So, in this case, would that mean that if T wished to end the contract, the six month term would apply; and if LL wished to end the contract (against the wishes of T), the 12 month term would apply?

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  • Paul Gibbs
    replied
    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.

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  • westminster
    replied
    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.

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  • michaelmichael
    replied
    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-

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  • jeffrey
    replied
    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.

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  • Paul Gibbs
    replied
    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.

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  • jeffrey
    replied
    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!

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  • Snorkerz
    replied
    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.

    Leave a comment:


  • westminster
    replied
    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?

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