Please explain this break clause to me!!

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

    Please explain this break clause to me!!

    I have let a property through an agent, the tenancy was a 12 month fixed term and commenced 3rd february 2012. She has now contacted me direct to say that she wishes to take advantage of the 6 month break clause. I had not been aware that there was a break clause in the agents tenancy agreement, but having now checked it I found the following:

    ]2.68 To give at least one months written notice no less than five months from the date of commencement of the
    tenancy.
    2.69 To return the property and its contents to its original state of repair as determine in the inventory.
    2.70 Should the tenancy be terminated within six months the tenant will be liable for the continued payment of
    rent plus a sum of two weeks rent (+vat) and the cost of the end of term inventory.


    I am a bit confused as it seems a bit contradictory? Could anyone assist here and explain what my position is here, I was going to offer that I would remarket the property but that she would be liable for rent until a suitable tenant had been found.

    Many thanks.

    #2
    Tenant can give 1 months notice to leave, ending the tenancy at any point after 6 months.

    Usually these clauses require that notice to expire on the last day of a rental month, yours doesn't.
    Often the notice required is 2 months, yours isn't.

    2.70 only applies if T wants to leave before the 6 month point.

    Comment


      #3
      2.68 To give at least one months written notice no less than five months from the date of commencement of the tenancy.
      IMO this isn't a break clause. All it says is that an unidentified party is to give written notice, and also fails to specify the effect of this written notice.

      A correctly drafted break clause would specify that the tenant or landlord may serve notice and that the notice ends the tenancy at notice expiry - but as the clause doesn't say this, any notice served under the clause will have no effect.

      (Of course, you may not be quoting all the relevant clauses of the contract)

      Comment


        #4
        With a correctly drafted break clause within fixed term, any LL activation only results in creation of SPT on expiry. If LL had isued a s21 (b) Notice at least 2 months prior to expiry of break clause Notice expiry, he could pursue repo proceedings after break clause expiry. His Notice can only terminate the fixed term AST, not the T. The Ts activation of break clause will serve as an irrevocable NTQ on expiry, but not before min AST period of 6 complete months.
        An equitable break clause could read, subject to westminster's approval, either Party may activate this break clause on providing min 2 clear month notice, such Noticecannot expire before end of month 6 of AST
        Thus T can vacate without further Notice on date of expiry and LL can pursue previously served s21 the day after expiry.

        Comment


          #5
          Originally posted by mariner View Post
          The Ts activation of break clause will serve as an irrevocable NTQ on expiry, but not before min AST period of 6 complete months.
          An equitable break clause could read, subject to westminster's approval, either Party may activate this break clause on providing min 2 clear month notice, such Notice cannot expire before end of month 6 of AST
          I don't know what my approval has to do with it.

          The clause specifies at least one month's notice; that much is clear. But, as I said, I don't think it's a break clause, as it fails to specify the effect of the notice.

          I am guessing that OP is quoting from the part of the tenancy contract containing the terms relating to the tenant's obligations. If so, it's still fairly meaningless, and moreover it wouldn't be a two-way clause, allowing either party to serve notice.

          It is possible that a court might conclude that the intention of the clause was to allow T to end the fixed term tenancy early but it might depend on what was agreed between the parties at the outset, i.e. between T and OP's agent (given that OP wasn't aware of any break clause) and whether a one-sided clause in the T's favour is enforceable (we know it wouldn't be if only LL were allowed to exercise a break clause).

          Comment


            #6
            I agree. The clause is 'messy' and does not clarify enough that it is a break clause.

            One thing I would ask of OP. Did you sign the tenancy agreement or did you leave it to the agent to do so on your behalf? If the latter, were you given a copy beforehand to approve, because if not then the agent will be liable for any errors. As you appeared to be unaware of the break clause however poorly drafted, then I would suggest you hadn't seen it before it was signed. Let us know.
            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.

            Comment

            Latest Activity

            Collapse

            Working...
            X