Need to get back into our property!

[dman]

Hopefully someone can help me with the correct steps to take for getting my flat back.
Due to my fathers serious illness my family is relocating back to London from Sydney. This has all happened rather fast. There are tenants in our flat and we wish to move in before September.
Their 2nd tenancy agreement started from Tuesday 22nd December 2010 for i year, with a 6 month break clause:

(e) If the Landlord shall desire to terminate the tenancy hereby created at or at any time after the first six months thereof and shall give the Tenant no less than two months previous notice in writing of such desire to do so then immediately upon termination of such notice the present tenancy and everything contained herein shall cease and be void but without prejudice to the rights and remedies of either party against the other in respect of any antecedent claim or breach of obligation.

I am right in thinking that will be in effect as of June 22nd?

I intend to call them as we have a pretty good relationship with them BUT you know how people can be, coupled with the fact they are having a baby this week they might not take the news particularly well!
I'm hoping that they understand but in the event that they don't, can anyone tell me the correct steps to take to ensure that I serve notice correctly - is it a Section 21? Bit green on this, thanks for any advice,

Dman

[westminster]

I am right in thinking that will be in effect as of June 22nd?

Yes

I'm hoping that they understand but in the event that they don't, can anyone tell me the correct steps to take to ensure that I serve notice correctly - is it a Section 21?

Probably best to serve two separate notices. First, serve notice under the break clause - this has the effect of ending the fixed term early on expiry of notice (T could move out at notice expiry and that would end the tenancy).

Then, a couple of days later serve a s.21(1)(b) notice giving at least two months and expiring after the end of the [now curtailed] fixed term.

Note that a s.21 notice is not a notice to quit; it does not end the tenancy nor oblige T to vacate. It merely entitles LL to apply for possession after notice expiry (so if T doesn't want to move out you can't count on getting possession 'before September').

[westminster]

p.s. Either serve by hand with a witness present, or post duplicate notices from two separate post offices, obtaining a free certificate of posting at each PO (you'll need this evidence if you have to apply for possession). The notices will be deemed serve two business days later, and the date of service is not included in the notice period, so allow for this when calculating the expiry date. As both the break clause notice and the s.21 notice must give a minimum of two months, but can give a longer notice period, I'd add on a week to be completely safe.

Also note that if T paid a deposit, it must be protected and the prescribed info provided to T before you can serve a valid s.21 notice.

[Snorkerz]

p.s. Either serve by hand with a witness present, or post duplicate notices from two separate post offices, obtaining a free certificate of posting at each PO (you'll need this evidence if you have to apply for possession). The notices will be deemed serve two business days later, and the date of service is not included in the notice period, .

OP appears to be in Australia. As airmail usually takes 4/5 days I think OP should really allow at least 10 working days between posting and having any confidence that it has been served. I guess your average 'District Judge' does not come across this situation frequently and so it is best to be over-cautious.

Also, if the s21 results in a court hearing (not automatic) will OP be able to attend?

[LesleyAnne]

OP appears to be in Australia. As airmail usually takes 4/5 days I think OP should really allow at least 10 working days between posting and having any confidence that it has been served. I guess your average 'District Judge' does not come across this situation frequently and so it is best to be over-cautious.

Also, if the s21 results in a court hearing (not automatic) will OP be able to attend?

In this technological world we live in, would it be possible for OP to email the S21 notice to a trusted family member in the UK, for them to print and post 2 copies here? Having family in Australia myself, I know how temperamental the post system can be, and for something this dependant on dates and proof of service, this might be a safer option.

[westminster]

OP's other threads suggest that he himself does not live in Australia.

[Snorkerz]

OP's other threads suggest that he himself does not live in Australia.

Aha - didn't realise we were only getting half of the story

[Grrr]

...tenancy agreement started from Tuesday 22nd December 2010 for i year, with a 6 month break clause:

(e) If the Landlord shall desire to terminate the tenancy hereby created at or at any time after the first six months thereof and shall give the Tenant no less than two months previous notice in writing ...

Is this break clause even valid? I thought that it was easy to make one unenforceable if badly worded, and as this one seems to favour only the Landlord (ie there is no provision for the tenant to exercise the break clause) then it is an unfair term? It might therefore not stand up?

On the other hand the tenants may not necessarily know this and may simply walk.

[westminster]

Is this break clause even valid? I thought that it was easy to make one unenforceable if badly worded, and as this one seems to favour only the Landlord (ie there is no provision for the tenant to exercise the break clause) then it is an unfair term? It might therefore not stand up?

We do not know whether or not there is a clause (d) or (f) entitling T to terminate the tenancy, perhaps giving one month's notice.

[dman]

OP? Other person? excuse my ignorance. I DO live in Australia - i'm relocating to London as stated in my opening post, I will be in London in late August whether I can get into my property or not, so if it came down to it and I hope it doesnt, then I could attend a court hearing.

[Mrs Mug]

OP? Other person? excuse my ignorance.

OP = Original Poster.

[Snorkerz]

Dman, can you clarify posts #8 & #9? Ta

[westminster]

I DO live in Australia

Then probably best to get someone in the UK to serve the notices on your behalf/obtain evidence of service.