Break Clause language

[camp2]

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?

[Snorkerz]

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!

[camp2]

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.

[dominic]

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.

[camp2]

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

[dominic]

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?

[PaulF]

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

[camp2]

"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.

[dominic]

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?

[Lawcruncher]

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.

[roryl]

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).

[camp2]

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.

[jeffrey]

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

[PaulF]

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!