Break clause written incorrectly . Can I still serve the notice?

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    Break clause written incorrectly . Can I still serve the notice?

    I am a land lord ( inexperienced )and I need to terminate 12 months shorthold tenancy agreement and ask my tenants to leave because they overcrowding the property .

    I copied the tenancy agreement in which there was a clouse “Either party shall have the right to terminate this agreement by giving the other party not less than 60 days’ advance written notice. This notice can only expire after the first six months of the Tenancy.”
    Being very new to all this business I decided to change this clouse and I left only the first part of it , thinking that it might give me the right to terminate the contract at any time as long as 2 months notice given, I now know it is not the case. But can I still serve the notice after 6 months? One lady in our local counscil thinks that I might be able to but as the clause as it is written is incorrect because as the minimum assured shorthold tenancy is 6 months, she thinks that should be stated explicitly for the benefit of the tenant. She thinks that this omission might invalidates the clause . Does it or does it not? Do I really need to take a legal advice on this ? Many Thanks

    #2
    What does the break clause say?
    Also, 60 days does not = 2 months
    Allow tenants to protect their own deposits. I want free money when they do it wrong

    Comment


      #3
      Originally posted by Tanush View Post
      I copied the tenancy agreement in which there was a clouse “Either party shall have the right to terminate this agreement by giving the other party not less than 60 days’ advance written notice. This notice can only expire after the first six months of the Tenancy.”
      Being very new to all this business I decided to change this clouse and I left only the first part of it
      Do you mean that the clause reads: “Either party shall have the right to terminate this agreement by giving the other party not less than 60 days’ advance written notice." ?

      But can I still serve the notice after 6 months? One lady in our local counscil thinks that I might be able to but as the clause as it is written is incorrect because as the minimum assured shorthold tenancy is 6 months,
      Council staff are not generally noted for their legal expertise.

      There is no minimum term for an AST. However, you cannot obtain a possession order under s.21 to take effect earlier than six months after the start of the tenancy.

      What date did the 12 month term begin?
      Did the T pay a deposit? If so, did you protect it and provide the T with the prescribed information (which is several pages, not just a one page certificate)?

      Comment


        #4
        `YES the clause in my tenancy agreement says “Either party shall have the right to terminate this agreement by giving the other party not less than 60 days’ advance written notice." ( Nothing more)

        The tenancy began in April so it's been 6 months already . the T did pay the deposit and I did protect it and gave them prescribed information. I did it only couple of months ago I know I should have done it earlier but I genially did not know about that law.

        Comment


          #5
          `YES the clause in my tenancy agreement says “Either party shall have the right to terminate this agreement by giving the other party not less than 60 days’ advance written notice." ( Nothing more)

          The tenancy began in April so it's been 6 months already . the T did pay the deposit and I did protect it and gave them prescribed information. I did it only couple of months ago I know I should have done it earlier but I genially did not know about that law.

          Comment


            #6
            Originally posted by Tanush View Post
            `YES the clause in my tenancy agreement says “Either party shall have the right to terminate this agreement by giving the other party not less than 60 days’ advance written notice." ( Nothing more)
            In that case you can end the fixed term tenancy by serving notice under the clause. You can do this in the form of a s.21 notice, but note that a s.21 notice has to give the T at least two calendar months, not 60 days. Also note that if the T remains in occupation after notice expiry, then a statutory periodic tenancy will automatically arise, replacing the fixed term tenancy.

            The only way you can unilaterally end the tenancy is by then applying for a court order for possession.

            The tenancy began in April so it's been 6 months already . the T did pay the deposit and I did protect it and gave them prescribed information. I did it only couple of months ago I know I should have done it earlier but I genially did not know about that law.
            Then you will have to refund the deposit before you can serve a valid s.21 notice.

            Comment


              #7
              Originally posted by westminster View Post
              In that case you can end the fixed term tenancy by serving notice under the clause. You can do this in the form of a s.21.
              Thank you . Can I write the notice myself or do I have to do it through the solicitors. I guess if I google I'll probably can find the sample, but if anyone could give me a link it would be great.

              as for 2 calendar months. So if I serve the notice let's say on 2nd of November it will expire 2 of January, Correct?

              And other question , why do I have to give the deposit before I serve the notice? i thought it has to be done at the end when inventory check is done

              Comment


                #8
                In order to serve a valid Section 21 notice (which will be accepted by the courts if you need to apply for a court order to end the tenancy should tenant refuse to leave), you must comply with the deposit protection regulations. These regs require you to protect the deposit within 30 days of its receipt - which you failed to do. So if you do not return the full deposit value now, before you issue the new Section 21 notice, the notice is invalid and tenant can ignore it, as the court will not issue you possession against it.

                Keep proof of the return of the deposit, and issue the Section 21 the following day - that ensures tenant has received the deposit back BEFORE the notice is issued. Remember the 2 months notice must include any days in the post etc, and the date of serving the notice is the date that tenant receives it, not the day you post it!

                Comment


                  #9
                  Originally posted by Tanush View Post
                  Thank you . Can I write the notice myself or do I have to do it through the solicitors. I guess if I google I'll probably can find the sample, but if anyone could give me a link it would be great.
                  http://www.letlink.co.uk/letting-lib...and-forms.html
                  The one entitled 'Section 21 possession at end of tenancy - fixed term'.

                  as for 2 calendar months. So if I serve the notice let's say on 2nd of November it will expire 2 of January, Correct?
                  Yes, but you need to bear in mind the date the notice is actually served. If you deliver it by hand, through the letterbox, then it's served the same day. If you post it, it's not served until it arrives (which is deemed to be two working days later. Therefore a notice posted on 2nd November would have to expire later than 2nd January). Also ensure that you obtain evidence of service, either take a witness to hand delivery, or obtain a free certificate of posting.

                  And other question , why do I have to give the deposit before I serve the notice?
                  Because there are legal sanctions in place for failing to comply with deposit protection requirements under Housing Act 2004 (and you failed to - there's a 30 day time limit to comply as from receipt of the deposit). One of the sanctions is that a s.21 notice will be invalid if you have failed to comply, unless you first return the deposit to the tenant. The other sanction is that the tenant has a case to claim against you for up to three times the value of the deposit.

                  Comment


                    #10
                    Thanks a lot for the information and the link,

                    I really would like to keep the deposit for now, I think I try to do it first without giving it back. I hope the things will not come to court and that is not what my tenants want , they are trying to get a council house. I know they will go with the notice to the council and if the council finds it invalid then I will give the deposit back and serve another notice, I am guessing I have to give it back in full without any inventory check or deductions correct?

                    Comment


                      #11
                      The council might require that they are evicted and not given a notice that the tenat may apply for possession. The notice doesnt do anything to the tenancy. As such, you should expect to get to court. And when it does, it will probably fail and you will have to start all over again. The council doesnt have to comment on the validity of the notice. They can let it go to court.
                      All views posted reflect my personal opinion only and do not constitute professional advice which I am not qualified or knowledgeable enough to provide.

                      Comment


                        #12
                        Reading this post my advice would be to leave your property management matters to a professional agent. I wouldn't be surprised if you end up having to pay 3x for not protecting the deposit.
                        [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


                          #13
                          How do I protect my property without the deposit? If they leave a mass how do I make them pay for that? And any idea how much the court cost? Is it possible to do it all without the solicitors?

                          Comment


                            #14
                            Have you protected your deposit in a government backed scheme?
                            [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
                              I did but not on time , so I have to give it back before serving the notice for it to be valid, that is what i've learned from here. I talked to the council they actually were quite helpful and they sounded like they don't want it get to court. But the cannot just provide them with the council house without any proper notice. They only need to accommodate 1 couple with the child the rest can stay. That is why I am thinking to give the notice without giving the deposit back and if council will not sort them out and will want me to proceed through the court, which i think I will find out pretty much straight away, then i give the deposit back and serve another notice. Just so you understand my position, I am not in too much of a hurry, yes the property is overcrowded and I am not happy about that, and I didn't want to get into trouble with the council because of that, that is why I asked them to leave in the first place, but they are all relatives, they keep house tidy , they pay on time, and as long as i do something about it, council will not make me responsible for overcrowding .

                              Comment

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