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

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

    #16
    Originally posted by westminster View Post
    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?
    There are two aspects to the service of a notice: substance and procedure. The notice needs both to say the right thing and be validly served. If either is missing there is no valid notice. However, the recipient can retrospectively validate a notice defective in form or incorrectly served if he communicates to the sender, whether expressly or impliedly, that he accepts the notice as valid and the sender relies on the acceptance. If the intended recipient does not know the notice has been served it is difficult to see how he can, except in very unusual circumstances and unwittingly, do anything that validates a notice invalid in form. If a notice is invalid and the recipient does nothing the notice remains invalid.

    As to the point that not all four tenants gave the notice I think we need to distinguish between one giving notice on behalf of all four and one giving notice purely for himself.

    There is just about enough in the tenant's email to argue it is a valid exercise of the right to break. The landlord's response went a long way to confirm that the landlord understood the purpose of the notice and so was not misled as to the tenants' intentions. Any gaps were filled in by the landlord.

    What has confused the issue here is that the tenants' did not leave when they said they would. If the notice had been in the correct form and properly served that fact would not have stopped the tenancy ending. The position must be the same where an invalid notice is valdated.

    Comment


      #17
      Originally posted by MrJohnnyB View Post
      Surely you could make the break conditional upon receiving keys and tenant complying with their repairing covenants?!
      You can make the exercise of a break clause conditional on anything you like so long as the condition can be fulfilled before the notice expires.

      Comment


        #18
        I called on occasions to get keys but they did not appear to understand the need of giving them. Instead they went on holiday even though it was agreed they would call me before going away.

        furthermore I habema voicemail to prove they where in the property Tuesday cleaning up.

        Therefore they should pay rent up to then?

        Comment


          #19
          Originally posted by VikG View Post
          I called on occasions to get keys but they did not appear to understand the need of giving them. Instead they went on holiday even though it was agreed they would call me before going away.

          furthermore I habema voicemail to prove they where in the property Tuesday cleaning up.

          Therefore they should pay rent up to then?
          Or double rent (maybe Distress for Rent Act 1737 does not apply to residential property I forget!)
          [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


            #20
            @lawcruncher, thank you for the clarification in post #16.

            Comment


              #21
              As I have proof tenants where in the property uptill last week (actually inside) can I use that as end date for rent payable?

              Comment


                #22
                Someone told me that if tenant is in the property they are liable for the rent - which to me makes sense? Therefore by entering the property they are liable till that date?

                Comment


                  #23
                  Forgetting about double rent, the position is that rent is only payable when there is a tenancy. Once the tenancy has ended rent is not payable. However, if a tenant stays on after a tenancy ends he is liable to pay what is referred to as mesne profits, which is a payment made by someone who is in occupation of land but has no permission to occupy the land. It is unwise unless you know what you are doing (and in this respect it is generally only litigators who know what they are doing) to ask for mesne profits while the ex-tenant is still in occupation as it can be taken to be a demand for rent and start a new tenancy. Since mesne profits are not rent they are only payable for the period of occupation.

                  Comment


                    #24
                    I would respond with something like..

                    I acknowledge your personal email of ? May indicating you wished to activate the AST break clause after expiry of the required 2 month Notice and that other joint Ts wished to leave asap
                    I would advise that activation of the break clause requires written consent/notification by all Ts. In which case the T would end on 7 July and no SPT would be created. If any T remained in occupation after this date the break clause Notice would be void and all joint Ts would remain liable for full rent to end of fixed term (7 Sept)

                    Failure to surrender property keys on 7 July implies the T was not terminated on this date so T continues until 7 Sept. If no Ts are present at this date I will assume 'abandonment and take nec repo action.
                    Please forward this email to your joint Ts as I do not have their email addresses

                    Comment


                      #25
                      Lawcruncher, I am not interested in double rent.

                      Thanks for the advice, I am getting keys soon and only then will chase arrears as Mesne Profits past notice acceptance date.

                      Comment

                      Latest Activity

                      Collapse

                      Working...
                      X