Need to serve tenants notice - AST related

[Landlady74]

I am a non resident landlord. The property being let out is my permanent residence in the UK. Managed by a lettings company.

Current tenants have been in there since August 2012. Originally signed an 18 month contract with a 12 month break clause. They requested it as they wanted some stability. All fine. That tenancy agreement expired last month and became a 12 month contract (labeled by the letting agents as a renewal) with provision for either party to terminate with 2 months notice. So agreement is until February 2015. We have just learnt that we will definitely be returning to the Uk in the summer. It was never certain although a possibility. We intend to move back into our property and ideally want it back in July. So this means giving the tenants notice no later than early May.

It has been suggested to me that we can't do this and that the tenants will be within their rights to contest. I haven't yet spoken to our agents yet but I can't see how that can be the case. The current tenancy agreement clearly states 2 months notice at any time. And in fact our previous tenants handed in their notice only a few weeks after they had renewed their agreement (their first 12 month lease with a 6 month break clause had expired and was renewed with the same terms as our current tenants renewal - 2 months notice at any time). Am I missing something here?

[monkeysee]

At face value it sounds like you are in the right (current agreement boils down to a 12 month fixed term with a 2 month break clause).

If you can, please post the exact wording of the clause and any others that are relevant

[Landlady74]

At face value it sounds like you are in the right (current agreement boils down to a 12 month fixed term with a 2 month break clause).

If you can, please post the exact wording of the clause and any others that are relevant

Thanks. The only wording relevant to length of agreement and break clauses is this from the the 2nd page of the agreement:

"Term: 12 months (it then gives the dates but I've left those out)

The Tenant and the Landlord both have the right to terminate the Agreement subject to two months written notice on a Rent due date. The two months notice must expire at the end of a period being on the 9th of a month"

The agreement clearly states on the front page that it is a renewal. There is no other mention about notice in the agreement.

[monkeysee]

Looks OK, the fact you have to give notice on a rent due date is a bit odd - so you'll need to make sure you comply with that part - just posting on a rent due date won't be sufficient for example, first class post is deemed served after 2 working days.

Best you can do is issue notice under the terms and then apply for possession if the tenant doesn't comply. Whether the courts accept break clauses is a bit hit and miss, but there doesn't appear to be anything wrong with yours. The fact it is a renewal counts in your favour, for initial fixed terms, notice can't be given in the first 6 months (for a S21 at least), but this isn't an initial fixed term.

I would suggest you proceed assuming it is valid, but not relying on it, in terms of your move back to the country. Hope that makes sense

[Landlady74]

Thanks. On what grounds could a court find against us though? Hopefully it wouldn't come to that but forewarned is forearmed and all that!

[monkeysee]

Well, as I said, it looks valid at face value, the only iffy part is the bit about having to give notice on a specific day, but you could solve that with a process server.

The thing you have to bear in mind is that by granting possession a court is potentially making somebody homeless, so they are inclined not to do it if there is a reason they can find.

It comes down to whether the court decides your clause is valid, I can't speak to that, all I can say is there is nothing overtly wrong with it IMO.

It's late at night though, there are plenty of folks on here that know way more than I do. You might get a more concrete answer from someone else , all I would say is don't rely on it 100%, have a contingency plan.

[mariner]

That 'extension' is neither fish nor fowl. IMO It may be construed as either:
A) a contractual periodic T requiring 2 month Notice. A SPT would require LL to giive min 2 month Notice and T only a min of ! month. It masquerades as SPT by saying Notice musr coincide with rent due dates
or as monkeysee suggests
B) a 12 month fixed term with a 2 month break clause option after first month or
C) a 1 month fixed term AST, followed by standardl SPT

A contractual periodic T (A) may limit what repo Notice you can serve. In equanimity the 'extension' allows either Party to give 2 months Notice at any time, thus activating any break clause. A valid T NTQ is also not rescindable wheras LL Notice onlly creates SPT on expiry. allowing LL to pursue Court order for repo on expiry, it cannot terminate T alone. It could take a further 2-5 months to evict T at a cost of £175 -£285

I assume the orig AST did not contain a clause stating you could use s8 g1 (reposess previous principal or sole UK residence) for repo?
Poss worthi nformally suggesting to prob miffed Ts you will refund all new property application fees, removal costs and final month rent when they sign a Deed of Surrender within 2 months of you notifiyting them of your intended date of return to UK, so you have possession on that date,

[jjlandlord]

It is clearly a new fixed term tenancy with a badly drafted break clause.

[Grrr]

Just to clarify, when the LL gives notice, you are not saying "you have to be out by x date [2 months hence]" You are saying instead, "I'm giving you notice that I want my property back at some point AFTER x date [2 months hence]"

The fact is, the majority of tenants do move out on or before the date named on the notice, but legally they don't have to until the LL has applied to the court for possession. If the notice is worded correctly (and everything else like deposit protection is in order) the court will award possession, but you might need to go through the process so it can take an additional few weeks before you get your property.

The best idea is to keep communication going with the tenant and get a feel for what their plans are. Then at least you'll have some idea whats likely to happen.