Break Clause query?

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    Break Clause query?

    Hi we have been in a rented property for six months, passed all inspections, paid rent on time. We had our first six month inspection last month, we were offered a new tenancy agreement for twelve months and signed this on the 18th August. It has a break clause on this so that the landlord (but not the tenant) can end the tenancy after three months. A week after the tenancy was signed they put the property on the market - so now we find ourselves in a position where they have guaranteed themselves the rent until it sells, but we cant invoke the break clause!!

    Could this be classed as being done maliciously and can the break clause be invoked by us as the tenants?

    #2
    So you signed a new 12 month AST in Aug with a 3 month break clause that only the LL can invoke? I think that others will opine that:
    1 Any break clause must be equitable to both sides ie either can invoke it.
    2 This is a NEW 12 month AST, even if 3 month break clause is permissible I doubt LL can enforce it within 6 months of AST start, the min term for an AST, unless you agrre to an early voluntary surrender of T. If T tried to invoke the break clause they may have a similar problem. I doubt the clause could be deemed 'malicious', just an uncaring LL hoping for a quick sale with vacant possession.

    Comment


      #3
      Originally posted by mariner View Post
      1 Any break clause must be equitable to both sides ie either can invoke it.
      Indeed, afaik a one-sided break clause would probably be ruled unfair.

      Originally posted by mariner View Post
      2 This is a NEW 12 month AST, even if 3 month break clause is permissible I doubt LL can enforce it within 6 months of AST start, the min term for an AST.
      There is no minimum term for an AST.
      What LL cannot do is to get a possession order in the first 6 months of the first AST. Here OP has a replacement AST and has been at the property for more than 6 months, so this does not apply.

      Even if the 6 month ruled applied, LL could still action the break clause to end the fixed term, giving T the opportunity to leave or serve a notice to quit at a later time.

      Comment


        #4
        Emma:

        If & when the property sells your tenancy continues as it was, simply a change of landlord...If it is bought by another landlord (who's a "good" landlord) maybe no problem..

        You are in a strong position from some points of view: Your LL wants to sell: You do not (almost) have to cooperate with the process - you can decline all viewings, surveys, inspections, valuations, photographings, etc etc .. LL can apply to court for a court order to get access but by then the prospective purchaser will be long gone.. You can also change the locks (keep old ones to put back when you leave...). That there are clauses saying different in the tenancy is interesting but largely unenforceable in the short/medium term...

        So, if (say) you decide you want to leave now you could (could ..) ask for rent reduction, good reference (ah, yes, 2-way street ..) and specific times only for viewings (eg Thursday evening 19:00-21:00 only). You might even agree to keep the place tidy (you can live with coal in't bath, curtains always drawn, hard-floors filthy, sink full of mouldy smelly dishes & pots, dirty clothes strewn everywhere as long as when the place is handed back when you leave is is as-was less "fair wear 'n tear" when you hand it back..). LL may react in an unhappy manner so - who knows eh??

        Can you post the EXACT wording of the break clause so that the assembled company may express views on it's "fairness" and thus if a court would permit it to be used (by either T or LL)??

        Cheers!

        Artful

        PS How often are the inspections?? Too frequent (eg every month..) would be considered - by some perhaps - "harassment"...
        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
          I remain to be convinced that a landlord only break clause is an unfair term. The OFT's view is not entirely clear. In section 3.61 of their guidance they say: "We do not object to the inclusion of terms allowing either party to terminate the agreement early" (my italics). However, in section 3.65 they say "Landlords sometimes choose to use a 'break' clause allowing them to bring the agreement to an end on service of two months' notice. We would object to such a term if it was not balanced by a similar provision allowing the tenant to give notice in the same way."

          In any event it must be remembered that a provision cannot be deemed to be unfair if it can be shown that it was individually negotiated. If the landlord/agent's standard terms include a landlord only break clause then it will be deemed not to have been individually negotiated and you can argue it is unfair. Otherwise, where a tenant wants a term longer than the landlord is prepared to grant and the parties agree the landlord has a right to break, the term will not be deemed to be unfair.

          Break clauses are an unnecessary complication that have been brought into short term residential tenancies by people who, if this forum is anything to go by, do not understand how they operate and certainly cannot draft them properly. Landlords should avoid granting and tenants should avoid taking terms longer than they are sure they want.

          Comment


            #6
            Agree break clauses are unnecessary complication.

            However (your link for source LC) OFT 3.60 states...


            Group 6(a): Unequal cancellation rights
            3.60
            Schedule 2, paragraph 1, states that terms may be unfair if they have the
            object or effect of:
            (f)
            authorising the seller or supplier to dissolve the contract on a
            discretionary basis where the same facility is not granted to the
            consumer.
            - which I think indicates their viewpoint.. Anyone aware of this being tested in't front of bloke with wig??
            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


              #7
              The OFT may be right (though my point about the UTCCR not applying to a term that has been specifically negotiated still applies). The problem with the UTCCR is that they do not sit very happily with tenancy agreements which are a different animal to standard consumer contracts.

              Comment


                #8
                Originally posted by Lawcruncher View Post
                The OFT may be right (though my point about the UTCCR not applying to a term that has been specifically negotiated still applies). The problem with the UTCCR is that they do not sit very happily with tenancy agreements which are a different animal to standard consumer contracts.
                Do you mean tenancy agreements deserve more or less protection than standard consumer contracts. Surely not less?
                Disclaimer:

                The above represents my own opinion, derived from personal knowledge and should not be relied upon as definitive or accurate advice. It is offered free of charge and may contain errors or omissions or be an inaccurate opinion of the law. I accept no liability for any loss or damage suffered as a result of relying on the above.

                Comment


                  #9
                  Originally posted by bhaal View Post
                  Do you mean tenancy agreements deserve more or less protection than standard consumer contracts. Surely not less?
                  I think they should have their own tailor-made code.

                  Comment


                    #10
                    Hi - been a while but the situation has changed a little...

                    When we looked at the agreement, it had a different date on it to the date we signed it, and also there were a couple of clauses in there about how we would decorate and re carpet etc - we were silly to sign, but we visited the letting agent, who gave us a letter confirming the new agreement was null and void due to their errors on the dates. So we moved to just what I think is rolling periodic tenancy if I remember rightly - where our AST that stared in Feb 2011 has ran out, and there is a one month notice period our side, S.21 required on the landlords side.

                    All went ok for the past 8 months really, house is on the market but no interest. Then a few weeks ago they started getting interest. I gave the agent three days per week where i allowed viewings, fairly flexible times. Sometimes I was not there but the agent has a key and there havent been any problems until this week.

                    They asked for a viewing on Monday night, this was 3pm on Saturday, I said it was very short notice, its also one of the days I dont normally let them in for viewings. They were persistent so I said ok, but its short notice, we have a new bed coming monday, so it may be hanging around - they said no problem!

                    Got a letter today through the door saying the landlord did the viewing, he wants us to re decorate, re carpet three rooms, mow the grass on a weekly basis, and they will now be doing monthly property inspections. He also said it was "disgusting" that the mattress for the new bed was in the hall. Its a three storey house and my Hubby was at work!

                    I wont say I keep the place like a show home as I have three kids, but its clean, in fact its better decorated than when we moved in, and its not my fault my bed turned up!

                    I guess I am after some advice on how to deal with it, the letting agent has booked an inspection for Friday am, meaning time off work to elt him in, but they havent been bothered before - we love this house, we actually only need to save for another 4 months to get the deposit ourselves but we didnt tell him that because we were hoping to get a couple of grand off the price.

                    Any advice much appreciated and apologies for the lengthy post!

                    Comment

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