Tenant exercised break option but failed to give keys by due date

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    Tenant exercised break option but failed to give keys by due date

    I let a house to students 8-sept-10.

    It was a 12 month tenancy but with a 6 month break clause.

    Tenant emailed June to excersice break for 7-Jul-11.

    By 7-Jul-11 key was not given and property was in a mess.

    After sending recorded delivery letters and calling them I agreed with them yesterday (still I don't have the key from them) that if they paid by Wednesday all arrears and cleaned up the house I would only charge them till 7-aug-11.

    Initially they accepted but today i receive an email saying they already gave notice and as they were not living there they are not going to pay the rent for July.

    Can somebody confirm that by them not giving the keys back regardless of whether they lived there or not means they are now in a periodic tenancy?

    Technically they need to give 1 months notice if I'm correct so should pay till 8-sept-11 if they give notice today?

    #2
    The fixed term ends on 7 September and your tenant[s] doesn't need to serve any notice to end the fixed term. If your break clause required the tenants to exercise such a right after 6 months then why is July being mentioned? 6 months from 8 September is 7 March 2011. Perhaps I'm missing something in the wording of the AST.
    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.

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      #3
      Please quote the break clause.

      Comment


        #4
        Originally posted by VikG View Post
        Can somebody confirm that by them not giving the keys back regardless of whether they lived there or not means they are now in a periodic tenancy?
        If the break clause was correctly exercised then it ended the tenancy. Failure to hand over keys does not change that.

        Comment


          #5
          May I ask why on earth you gave students a six-month break clause? Were you so sure of being able to fill the property again if they left at any point between the 6th and the 11th month of the academic year?

          Or do you like to build in a few void periods?

          Seriously, I'm interested.
          'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

          Comment


            #6
            Break clause was added by agent without our consent and on signing it was too late as either we accepted or look for another tenant. However we assumed tenants would break after month 9 at earliest.

            Would never use that agent again!!

            The break clause can be excercised at any time after month 6.

            Landlord uses 10ninety system which has the following optional break clause:

            Both the landlord and the tenant may bring the tenancy to an end at any time before the expiry of the term (but not earlier than 6 months from the commencement date or the date of this agreement whichever shall be latter) by giving to the tenant not less than 2 (TWO) months written notice stating the Landlord requires possession of the premises.


            As a correction the notice was given to us on 8th may not June.

            Comment


              #7
              To recap:

              1. Fixed term commenced 8th September 2010 (therefore expiring 7th September 2011)
              2. 12 month term with a break clause:

              Both the landlord and the tenant may bring the tenancy to an end at any time before the expiry of the term (but not earlier than 6 months from the commencement date or the date of this agreement whichever shall be latter) by giving to the tenant not less than 2 (TWO) months written notice stating the Landlord requires possession of the premises.

              3. Tenant served notice (by email) on 8th May to end the tenancy on 7th July 2011.

              Correct?

              * * *


              The break clause you quote - is that the only clause in the contract? There isn't another clause saying how much notice T must give to LL? Because if not, what you quote doesn't really entitle the T to serve notice. It essentially says that "both the LL and the T may bring the tenancy to an end...by giving to the tenant not less than two months notice..." (which suggests that T must serve notice to himself to end the tenancy).

              And you say "Technically they need to give 1 months notice if I'm correct so should pay till 8-sept-11 if they give notice today?" It doesn't say this in the break clause, so where does this come from?

              Another point which occurs to me is that you say T served notice by email. But if this was a joint tenancy (as it sounds like), then all the joint tenants would have to exercise the break clause, not just one of them. So this would be another thing which calls the validity of the notice into question.

              Finally, I would question whether T gave a full two months' notice (if that is what was required). Arguably, the date of service is not included in the notice period. To give two clear months, it would have to expire on 8th July (if served on 8th May).

              Can somebody confirm that by them not giving the keys back regardless of whether they lived there or not means they are now in a periodic tenancy?
              If a tenant correctly exercises a break clause (and in this case it's arguable as to whether he has or he hasn't) then the tenancy ends at his notice expiry. No periodic tenancy would follow, even if T failed to vacate.

              Comment


                #8
                Sorry missed that bit should read:

                Both the landlord and the tenant may bring the tenancy to an end at any time before the expiry of the term (but not earlier than 6 months from the commencement date or the date of this agreement whichever shall be latter) by giving to the tenant or the landlord not less than 2 (TWO) months written notice stating the Landlord requires possession of the premises.
                I have 4 tenants named on the tenancy however it has been assumed 1 person to be in charge. In hindsight I can assume this requires all to give notice.

                I understand the notice by the tenant now to be invalid (infact they said they want to move out today ie date of emailing).

                My email reply to them was:

                Thank you for your email sent on 8th May 2011. As per our discussions you need to give us adequate notice that you intent to leave the property which in accordance with Paragraph 13 of the AST agreement starting 8th September 2010 is a 2 month notice either way.

                Therefore your date of liability for the property is 7th July 2011.

                However, we did discuss the possibility of somebody else coming in and taking over your tenancy if the agent can find someone. I am awaiting to hear from the agent so will get back to you. Now that I have the notice from yourself it allows me to market the property.

                It will be in your interest in being available for viewings, therefore please let me know what is a convenient time for you to show the property so I can let the agent know and hopefully pass your details on for arranging the viewings.

                I await to hear from you to confirm how you would like to move forward.
                I can see I have over complicated this now.

                I want them out and to pay rent up till atleast 8th August 2011.

                What's the way forward?

                If I have not made the situation worse then I have thought of this:

                1 - Tenant did not exercise break clause - I infact agreed to end the tenancy on 7th July 2011 - tenant did not accept this? I had no reply to agree? By making no effort on 7th July 2011 to clean the property or vacate all belongings then they have automatically refused this offer I made them?

                Tenants email (note he has dated it 5th May but sent it on 8th May):

                05/05/2011
                Dear xxx
                I am writing to inform you of my intention of leaving the property of xxx on the 8th May 2011. I have arranged with my fellow roommates and they would like to leave asap as our exams have finished and our academic year has ended.
                If there any problems please don't hesitate to contact me on

                2 - Tenancy still ends on 7th September 2011. Tenant to give keys by then and pay rent to that day?

                Tenants want to give me the key back - do I need to accept it? They have sent me an email with permission to enter the property at any time for viewings for potential tenants (again only from 1 person).

                Comment


                  #9
                  I think we need to know exactly what the tenants' email said.

                  Comment


                    #10
                    Tenants email was:

                    05/05/2011
                    Dear xxx
                    I am writing to inform you of my intention of leaving the property of xxx on the 8th May 2011. I have arranged with my fellow roommates and they would like to leave asap as our exams have finished and our academic year has ended.
                    If there any problems please don't hesitate to contact me on xxx

                    Comment


                      #11
                      The tenant's notice is not quite what a chancery barrister would come up with. When no form is specified the question to be asked is whether the recipient understood the purpose of the notice and was not misled by it. I think you have answered the question because your reply effectively says: "Ah! A notice exercising the right to break. You forgot to mention an end date - that'll be 7th July." You then go on to assume the tenancy will end on that date because you talk about the possibility of them going sooner. You then specifically say that now that you have the notice you can market the property.

                      There is no telling how a court would look at it, but basically if you receive an invalid notice and carry on as if it is valid you are stuck with it.

                      Comment


                        #12
                        Originally posted by VikG View Post
                        I understand the notice by the tenant now to be invalid (infact they said they want to move out today ie date of emailing)....

                        1 - Tenant did not exercise break clause - I infact agreed to end the tenancy on 7th July 2011 - tenant did not accept this? I had no reply to agree? By making no effort on 7th July 2011 to clean the property or vacate all belongings then they have automatically refused this offer I made them?
                        The tenant served notice on 8th May, and when they say they'd like to leave "on 8th May" and "asap as our exams have finished" it does seem to indicate that they thought the notice could expire that same day, but you did as any LL would do, and treated it as expiring two months later.

                        I think the T is certainly liable for rent up to 7th July, as per your email, but beyond that is uncertain. I don't think you can rely on their failure to respond to your email reply. Your email was accepting their notice, effectively; I don't see it as an 'offer'. But, it the T held over and didn't vacate by 7th July (do you know when they actually did vacate?) then you'd have a claim for a payment equivalent to the rent for the time they remained in occupation. Retention of keys is not equivalent to being in occupation.

                        Tenants want to give me the key back - do I need to accept it? They have sent me an email with permission to enter the property at any time for viewings for potential tenants (again only from 1 person).
                        It is unreasonable to refuse return of the keys if you have accepted the tenant's notice and they have vacated.

                        Comment


                          #13
                          Originally posted by Lawcruncher View Post
                          The tenant's notice is not quite what a chancery barrister would come up with. When no form is specified the question to be asked is whether the recipient understood the purpose of the notice and was not misled by it. I think you have answered the question because your reply effectively says: "Ah! A notice exercising the right to break. You forgot to mention an end date - that'll be 7th July." You then go on to assume the tenancy will end on that date because you talk about the possibility of them going sooner. You then specifically say that now that you have the notice you can market the property.

                          There is no telling how a court would look at it, but basically if you receive an invalid notice and carry on as if it is valid you are stuck with it.
                          Theoretical question, given that a notice may be validly served but not actually received; what if the T's notice had slipped under the proverbial lino? Would the tenancy still have ended two months later, in spite of the invalidity of the notice in apparently stating that it expired on the date of service, and not being served by all the joint tenants?

                          Comment


                            #14
                            Surely you could make the break conditional upon receiving keys and tenant complying with their repairing covenants?!
                            [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

                            Comment


                              #15
                              Originally posted by MrJohnnyB View Post
                              Surely you could make the break conditional upon receiving keys and tenant complying with their repairing covenants?!
                              With some tenants you would have a long wait.
                              'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                              Comment

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