Six Month Break Clause

[lollipopshopper]

Hey,

Was wondering if anyone can help me please? I have a year contract at a flat (move in date was 13/04/2010) and I have a six month break - I have to give two months notice. I want to move out as soon as possible? Can I only give notice after the six months or could I give notice on the fourth month?

Thank-you! x

[jeffrey]

What is the break-clause's precise wording?

[lollipopshopper]

Thanks for your help. We actually moved in on the 13/03/10 so guessing we would have to give notice in two days (if it is 4 months + our two months notice=6 months).

The contract states:
2.5 Ending the tenancy
2.5.1 If the tenant intends to vacate at the end of the fixed term, or at any later date, he agrees to give the landlord at least two months prior notice in writing.
2.5.2 While the tenancy is periodic the two months written notice must expire the day before the rent due date (the 13th of every month)

2.7 The break Clause
2.7.1 The landlord may bring the tenancy to an end at any time before the expiry of the fixed term (but not within six months of the commencement date) by giving to the tenant at least two months written notice stating that the landlord requires possession of the property. A notice under section 21 of the housing Act 1988 will suffice to implement this sub clause.
2.7.2 The tenant may bring the tenancy to an end at any time before the expiry of the fixed term (but not within six months of the commencement date) by giving to the landlord at least two months written notice.

So basically just wanted to find out if we can do it now (at four months with the two months notice) or must we wait six months and then give the two month notice (bringing it to eight!) Would love some feedback!


Any help would be greatly appreciated!

[mind the gap]

I would take this to mean that you can serve notice at four months and thus end the tenancy at six, (but I am not a lawyer). Serving the notice in itself does not end the tenancy, which would seem to support my interpretation of the wording you have here.

Perhaps Lawcruncher or jeffrey could verify.

[Lawcruncher]

If Lawcruncher were not already in a darkened room to escape the full effect of the mid-day Andalusian sun he would retire to one.

2.5.1 If the tenant intends to vacate at the end of the fixed term, or at any later date, he agrees to give the landlord at least two months prior notice in writing.

This only applies if the tenant intends to vacate. If he does not intend to vacate, but vacates anyway, it does not apply. How are we to know the tenant's intentions and therefore whether the clause applies? In any event it does not apply. A fixed term is fixed term. It ends when it ends. Both parties know when it ends. No notice is needed. The provision is of no effect.

2.5.2 While the tenancy is periodic the two months written notice must expire the day before the rent due date (the 13th of every month)

This is of no effect while the tenancy is an assured tenancy. See section 5 (3) (e) of the Housing Act 1988: http://www.statutelaw.gov.uk/content...&filesize=8797

2.7.1 The landlord may bring the tenancy to an end at any time before the expiry of the fixed term (but not within six months of the commencement date) by giving to the tenant at least two months written notice stating that the landlord requires possession of the property. A notice under section 21 of the housing Act 1988 will suffice to implement this sub clause.

A well-drafted break clause makes clear either the earliest date when the notice may be served or the earliest date when it takes effect. This does neither and the only certainty is that a notice served after six months will be effective.

2.7.2 The tenant may bring the tenancy to an end at any time before the expiry of the fixed term (but not within six months of the commencement date) by giving to the landlord at least two months written notice.

I make a similar observation. However, I think that, applying the contra proferentem rule - see here: http://en.wikipedia.org/wiki/Contra_proferentem the clause may be interpreted to favour the tenant. Accordingly the notice may be served so long as it expires after the first six months.

Serving the notice in itself does not end the tenancy

When it comes to the service of a break notice by a landlord this is the practical effect, but not the strict legal position. When a valid break notice is served by a landlord it ends the fixed term on the expiry of the notice, but if section 5 HA 1988 applies a new statutory periodic tenancy arises.

When it comes to the service of a break notice by a tenant the tenancy does indeed come to an end since section 5 does not apply if the fixed term comes to an end by "a surrender or other action on the part of the tenant" - see subsection (2) (b).

[Snorkerz]

2.5.2 While the tenancy is periodic the two months written notice must expire the day before the rent due date (the 13th of every month)

This is of no effect while the tenancy is an assured tenancy. See section 5 (3) (e) of the Housing Act 1988:

Are you sure Lawcruncher?

Section 5 relates to a Statutory Periodic Tenancy, does the inclusion of this term in the tenancy agreement not make the continuation a Contractual periodic tenancy, and thus the notice is whatever the TA says?

[Lawcruncher]

Section 5 relates to a Statutory Periodic Tenancy, does the inclusion of this term in the tenancy agreement not make the continuation a Contractual periodic tenancy, and thus the notice is whatever the TA says?

No. Whether there is a contractual periodic tenancy depends on whether the agreement expressly so provides and not on the presence of wording that tries to provide for what happens after the fixed term ends.

[mind the gap]

Apologies for any perceived vagueness/inaccuracy. When I said that the serving of the notice does not in itself end the tenancy, I meant that whilst serving a notice signals an intention to end the tenancy, the tenancy cannot actually end before the expiry of the notice in two months' time and the moving out of the T.

Is that not the case?

[Snorkerz]

Section 5 relates to a Statutory Periodic Tenancy, does the inclusion of this term in the tenancy agreement not make the continuation a Contractual periodic tenancy, and thus the notice is whatever the TA says?

No. Whether there is a contractual periodic tenancy depends on whether the agreement expressly so provides and not on the presence of wording that tries to provide for what happens after the fixed term ends.

Thanks - I have been educated