Break Clause language

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Break Clause language

    I am trying to renew a Tenancy Agreement, but add a break clause to the new tenancy, which we don't currently have. Here is the language that is proposed in the Renewal Memorandum, with my questions/comments in brackets:

    "Nothwithstanding the provisions contained within the Agreement [which was defined in earlier para as the existing Tenancy Agreement] and relating to the term of the tenancy hereby created it is agreed that either party many terminate this agreement [is this referring to the actual "A"greement, or this renewal "a"greement?] by giving to the other at least two months prior written notice of his intention to so do such notice to be delivered by hand or first class post and shall not expire [what shall not expire? this agreement or the renewed Agreement] before 3 September 2010 [that's the date the new Tenancy is meant to begin, the old one expiring on 2 Sept., so how could it ever "expire" before 3 November?] at which time this tenancy shall determine [they tell me this means "terminate", but I don't know if that's all it means] absolutely but without prejudice to any claim by either party against the other in respect of any antecedent breach or non observance of the provisions of the Agreement."

    Does anyone have any clarity to offer? Is this language, however clumsy, giving me the right to terminate my renewed tenancy withtwo months notice?

    #2
    IANAL, but I do know that drafting is not really a DIY sport. Spend £100 getting an expert draft it for you and then you won't end up looking silly in court when an opponent wriggles through whatever loopholes you have inadvertently left.

    It may not be the right thing to say, but once you have had it drafted, you can use it in future agreements forever!

    Comment


      #3
      Actually this is the language that is being presented to me; it's not negotiable. I just need to decide whether I am going to sign it. Yes, I could pay a lawyer to tell me whether I should sign it -- ie whether it does indeed create a break to the new agreement, as opposed to a right to break the renewal. But then if I was going to do that, I wouldn't be coming to a forum to see if I could get the advice of my fellow travellers for free.

      Comment


        #4
        It's nopt very clearly drafted, agreed.

        Ok, briefly, the clause looks ok, provided you understand that the earliest you (or the LL) can actually end the tenancy is 3September 2010, and you must give LL (or LL must give you) at least 2 months notice.

        The reference to expiry means expiry of the notice. So you could serve a notice on day 1 of the tenancy, but it wouldn't expire until 3 September 2010*, and the tenancy will only end [prematurely] on the expiry of the notice.

        *But accepted this makes no practical sense (or adds anything) if day 1 of the tenancy is 3 September 2010.

        Comment


          #5
          Thanks for your reply. I am having difficulty penetrating the idea of the notice expiring...if the notice must be two months, then that is the same thing as saying that the tenancy cannot end before 1 Sept? So, are you in agreement that what this is saying is I can give notice tomorrow, say, 14 July and I could end the tenancy (which has not even yet begun) as of 14 Sept? And are you Ok with this use of the word "determine" to mean "terminate"? Thanks

          Comment


            #6
            Originally posted by camp2 View Post
            Thanks for your reply. I am having difficulty penetrating the idea of the notice expiring...if the notice must be two months, then that is the same thing as saying that the tenancy cannot end before 1 Sept? So, are you in agreement that what this is saying is I can give notice tomorrow, say, 14 July and I could end the tenancy (which has not even yet begun) as of 14 Sept? And are you Ok with this use of the word "determine" to mean "terminate"? Thanks
            "determine" is a fancy legal word which means the same thing as terminate in this context.

            As to the expiry of the notice, I think you're reading too much into what the clause is saying. Yes, technically, you could issue a notice today which would be effective if you then subsequently agreed to that clause (and the earliest it would expire would be 3 Sep - you must provide at least 2 months' notice), but why would you do that, why wouldn't you (instead) request a shorter term from the outset?

            Comment


              #7
              Originally posted by camp2 View Post
              I am trying to renew a Tenancy Agreement, but add a break clause to the new tenancy, which we don't currently have. Here is the language that is proposed in the Renewal Memorandum, with my questions/comments in brackets:

              "Nothwithstanding the provisions contained within the Agreement [which was defined in earlier para as the existing Tenancy Agreement] and relating to the term of the tenancy hereby created it is agreed that either party many terminate this agreement [is this referring to the actual "A"greement, or this renewal "a"greement?] by giving to the other at least two months prior written notice of his intention to so do such notice to be delivered by hand or first class post and shall not expire [what shall not expire? this agreement or the renewed Agreement] before 3 September 2010 [that's the date the new Tenancy is meant to begin, the old one expiring on 2 Sept., so how could it ever "expire" before 3 November?] at which time this tenancy shall determine [they tell me this means "terminate", but I don't know if that's all it means] absolutely but without prejudice to any claim by either party against the other in respect of any antecedent breach or non observance of the provisions of the Agreement."

              Does anyone have any clarity to offer? Is this language, however clumsy, giving me the right to terminate my renewed tenancy withtwo months notice?
              It appears to be legal gobbledegook which does not follow guidance within the Unfair Terms in Consumer Contract Regulations 1999
              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


                #8
                Originally posted by dominic View Post
                "determine" is a fancy legal word which means the same thing as terminate in this context.

                As to the expiry of the notice, I think you're reading too much into what the clause is saying. Yes, technically, you could issue a notice today which would be effective if you then subsequently agreed to that clause (and the earliest it would expire would be 3 Sep - you must provide at least 2 months' notice), but why would you do that, why wouldn't you (instead) request a shorter term from the outset?
                The LL wants me to renew for 5 months, which on principle I'm happy to do. But my circumstances might change and I want to be able to shorten the tenancy if that happens. Rent is expensive and he has agreed to the break provision. But that's why I'm trying to make sure it's what I think it is: the LL and I agree; it's the *@&$&*& letting agents who are ... difficult.

                Comment


                  #9
                  Originally posted by camp2 View Post
                  The LL wants me to renew for 5 months, which on principle I'm happy to do. But my circumstances might change and I want to be able to shorten the tenancy if that happens. Rent is expensive and he has agreed to the break provision. But that's why I'm trying to make sure it's what I think it is: the LL and I agree; it's the *@&$&*& letting agents who are ... difficult.
                  Then why not stop dealing with the LA (you don't have to), and just deal with the LL?

                  Comment


                    #10
                    Taking off the bits at the beginning and end which are not relevant to interpreting what the effect of the clause is and taking out your interpolations we have:

                    "it is agreed that either party many terminate this agreement by giving to the other at least two months prior written notice of his intention to so do such notice to be delivered by hand or first class post and shall not expire before 3 September 2010 at which time this tenancy shall determine absolutely."

                    We can then take out the bit about how the notice is to be served and make the necessary consequential grammatical changes leaving:

                    "it is agreed that either party many terminate this agreement by giving to the other at least two months prior written notice of his intention to so do such notice not to expire before 3 September 2010 at which time this tenancy shall determine absolutely."

                    The meaning is then clear.

                    1. You can bring the tenancy to an end by giving notice.

                    2. The period of the notice must be at least two months.

                    3. The date on which the notice is to expire must not be before 3 September 2010. (If you give notice saying: I give you notice terminating the tenancy on 5 September 2010, then that date is the date on which the notice expires.)

                    4. When the notice has expired, the tenancy ends.

                    So far so good. However, you say that the tenancy is to begin on 3 September 2010. If that is the case then while the meaning is clear its effect is slightly nonsensical nonsensical since you have the right to end the tenancy on the day it begins.

                    Comment


                      #11
                      Wouldn't it be more advantageous to the Tenant if they went onto a SPT rather than signing a new contract? Doing so would allow the Tenant to leave with one month notice while the LL has give two months (the same as in the new TA).

                      Comment


                        #12
                        Excellent Lawcruncher. Thank you for walking me through that. I see. It has also finally sunk in how notice "expires" which I didn't think in terms of it doing before this whole exchange. As for the non-sensical-ness, it's fine with me. I don't actually think this is what the LL had in mind and his LA who gets 10% or something is being rather stupid. I thought I would effectively have to commit to 2 months more of lease -- but they're saying not. OK by me. And if it goes the other way, well that's OK too.

                        I am good with all this. Thanks everyone. This is my first time.

                        Comment


                          #13
                          In post #10, line 1 of each of paras. 2 and 4 shows 'many but means 'may'.
                          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


                            #14
                            Originally posted by jeffrey View Post
                            In post #10, line 1 of each of paras. 2 and 4 shows 'many but means 'may'.
                            Must have been a 'cut/copy-and-paste' job!
                            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

                            Latest Activity

                            Collapse

                            • Reply to Whatever happened to the tidal wave of evictions?
                              by theartfullodger
                              Many many tenants leave when served s21 , more when court papers served etc etc. Any tidal wave/tsunami may become visible later than now, if at all.
                              21-05-2022, 12:04 PM
                            • Whatever happened to the tidal wave of evictions?
                              by jpkeates
                              The latest government figures for possession claims have been published, which cover January through March 2022.
                              That's post Covid restrictions and would probably include most of the last of the Covid backlog.

                              And there's no sign of the massive wave of evictions and resulting mass...
                              19-05-2022, 10:46 AM
                            • Reply to Ending contracts
                              by theartfullodger
                              Depends on what the agreement you have between you and agent or the terms and conditions they sent you when you started the relationship. Sadly can't read it from here.

                              See what it says, if you can't find anything ask agent to provide copy of such terms you agreed to.....and how/where...
                              21-05-2022, 12:02 PM
                            • Ending contracts
                              by Pineapple288
                              2 questions. I rent my BTL property through a letting agent. The current tenant has handed notice in. Am I right in saying I can now leave this letting agent?

                              Second question, the.reason I'm leaving the agent is because a very good friend of mine would like to rent he property. If she wants...
                              21-05-2022, 11:59 AM
                            • Reply to Noise from rented property
                              by zcacogp
                              Thanks for the help everyone. We've made (indirect) contact with the landlord who has been helpful, which is great. The council will be the next port of call if things don't sort themselves out.

                              Interestingly, the local university (Alma Mater of the students in question) seems to take...
                              21-05-2022, 10:50 AM
                            • Noise from rented property
                              by zcacogp
                              Hi,

                              I have a question to which I suspect I know the answer, but I'll ask it anyway.

                              We live in a house whose garden backs onto other gardens. One of those houses is let to a group of students.

                              The students are given to making noise in their garden, particularly...
                              18-05-2022, 11:36 AM
                            • Reply to Checks foe a Newbie
                              by boletus
                              List here (I've not checked if it's accurate or up to date e.g EICR);

                              https://forums.moneysavingexpert.com...the-first-time
                              21-05-2022, 10:49 AM
                            • Checks foe a Newbie
                              by AVJ113
                              Hello good people. I am currently in the process of buying my first BTL house. There is already a tenant, so I don't need to find one.

                              Can any anyone point me to a check list of 'must do legally', and also 'highly advised', please? I 've done my research but there's nothing like hearing...
                              20-05-2022, 16:33 PM
                            • Reply to Checks foe a Newbie
                              by AVJ113
                              Is there no one here who is prepared to present a list of a landlord's obligations (and highly advisable actions) upon a new tenancy, based on there own experience?

                              As I said I am already buying a house and there is a tenant in situ....
                              21-05-2022, 10:44 AM
                            • Reply to Checks foe a Newbie
                              by Another Fine Mess
                              Fortunately in the Uk (Scotland may be different) any house purchase is "Subject to Contract" which means that at any time you can change your mind. so if you have second thoughts you can back out.
                              I would also say that even if you have signed a contract, and before completion, you...
                              21-05-2022, 10:24 AM
                            Working...
                            X