Invalid S21 notice re. Break Clause – dates, wording??

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    Invalid S21 notice re. Break Clause – dates, wording??

    Dear all & thanks in advance for any comments..

    My youngest son & his two house-mates have been sent a S21 relating to a break clause. The AST for a house in London was a renewal of a previous one, both 12 months fixed-term, the most recent from 30/09/2010-29/09/2011.

    The break clause states (verbatim..)
    ”6.2 This agreement may be terminated by either party giving to the other at least two months notice in writing any time after the first four months of the tenancy such notice not to expire until after six months from the Commencement Date of this Agreement as specified in clause three above.”.
    The S21 was signed & dated 25th January 2011, posted that day & arrived (post) 26th Jan 2011.

    The S21 states (almost verbatim..)..

    …. Section 21 (1) (b)..


    ...


    I give you notice that I require possession of the dwelling house know as xx Alpha Street, Beta District, London AB1 2CD

    From 29th March 2011

    Signed A.N.Other [initials of agent] … Dated (hand-written but clear) 25/1/11
    ….................................(today's date).”””
    There was a polite covering letter, also dated 25th January 2011

    Clearly we recognise that (Aylward v Fawaz, 1997) an S21 can serve as a notice to operate the break clause.

    My view is that the S21 is invalid as regards the break clause on 2 counts.
    a) It states “from 29th March 2011” when it should state “after 29th March 2011” (or a later date..)
    b) The notice was served too early - during the first 4 months of the tenancy - and thus the break clause has not yet taken effect.

    The 2nd point was made to the lettings agent: Their response (verbatim) was...
    to your reply, please be advised the notice was posted on the 25th January to take effect on the 30th and to expire on the 29th March. As the notice is a section 21 must allow 2 working days 1st class post to be received, therefore the date of the 25th was correct to allow for delivery. If the notice had been served on the 25th January and effective then that would be incorrect.
    (!!??) There is no mention of 30th January in the S21 or covering letter: Presumably anyway were it to have been served on 30th January the expiry date would have had to be "after 30th March 2011" - or later...

    Is my view that the S21 notice is invalid correct or have I misunderstood??? Comments please??

    Cheers!

    Artful
    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

    #2
    I think it's defective, too.

    Four months from 30th September is up to and including 29th January. The break clause notice cannot be served earlier than 30th Jan. Posted 1st class on Tues 25th Jan, it would be deemed served Thursday 27th Jan, three days too soon.

    The break clause notice can't expire earlier than six months from 30th September, which is up to and including 29th March. 'After 29th March' would be the earliest the notice could expire.

    Even if one accepts that the notice period commences 30th Jan, the wording 'from 29th March' means as from the whole day of 29th March, so it's one day short of two months, and it's also one day short of the earliest the break clause notice could expire.

    Comment


      #3
      Agent has now agreed notice invalid & accepted suggestion of an inducement for tenants to leave on expiry date of notice. Thanks Westminster & Jeffrey (direct contact).

      We will see if agent/LL pay inducement and are "reasonable" over deposit...

      Cheers!

      Artful
      I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

      Comment


        #4
        Never posted the result.. 1 months rent returned, LL attended checkout (V p***ed off with agent), full deposit returned to son & 2 house-mates, good references provided as agreed.

        Son & G/F now in flat on t'other side of park to riots....

        Thanks everyone!!!
        I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

        Comment


          #5
          Great news!

          This confirms was I thought: Having limits on when the break clause notice can be served only creates an extra possibility of mistake.
          The minimum notice period and the earliest date the notice can expire are all that matter.
          Keep it simple.

          Comment


            #6
            Originally posted by jjlandlord View Post
            Having limits on when the break clause notice can be served only creates an extra possibility of mistake.
            The minimum notice period and the earliest date the notice can expire are all that matter.
            Keep it simple.
            Absolutely!

            Even better: keep it really simple and avoid break clauses.

            Comment

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