Break Clause query

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    Break Clause query

    Hello.

    When I moved into my flat I signed a 12-month contract. Everyone in the flat signed their own contracts - it's NOT a joint tenancy agreement. There is a break clause which says this:

    One rental months notice may be given by either the tenant or landlord after a period of six months has expired from the start of the tenancy to terminate the tenancy subject to the replacement tenant being acceptable to both the landlord and the remaining tenants

    I gave notice after six months which the landlord accepted. I have since had my room advertised on two sites online, and shown my room to around 25/30 different people. However, nobody has wanted the room as (I believe) the rent is too high.

    I was wondering whether I am still allowed to leave as the break clause doesn't say I'm responsible for finding a replacement tenant, and I feel that I have done everything in my own power to find a replacement tenant and been unable. The situation in the flat with the other flatmates is unpleasant and I would really rather not have to remain there.

    If I did leave would I be liable to pay rent up until the full 12 months of the initial contract has elapsed?

    Any advice would be appreciated.

    Many thanks,

    Georgia

    #2
    Originally posted by Georgia123 View Post
    If I did leave would I be liable to pay rent up until the full 12 months of the initial contract has elapsed?
    Sounds like it, or until a new tenant is found as the LL can't be paid twice for the same rent. You need to put a case together with regards to the rental price and try and get it lowered.
    "I'm afraid I didn't do enough background checks apart from checking her identity on Facebook" - ANON

    What I say is based on my own experience and research - Please don't take as gospel without first checking the gospel yourself.

    Comment


      #3
      Originally posted by Georgia123 View Post
      Hello.

      When I moved into my flat I signed a 12-month contract. Everyone in the flat signed their own contracts - it's NOT a joint tenancy agreement. There is a break clause which says this:

      One rental months notice may be given by either the tenant or landlord after a period of six months has expired from the start of the tenancy to terminate the tenancy subject to the replacement tenant being acceptable to both the landlord and the remaining tenants

      I gave notice after six months which the landlord accepted.
      If this is an AST, the T can give a month notice but the LL has to give the T 2 months notice regardless of what the contract may say. So I believe that part of that that term is unenforceable? Whether or not the whole term is unenforceable due to that defect, or just that particular part, I don't know.

      If I were you Georgia I would point out in writing to the LL that the whole term is unenforceable due to the 1 month/ 2months notice part, and tell the LL that as he/she has accepted your notice you will be leaving when the notice expires. And see what they say?

      Did you pay the LL a deposit, was it protected?

      pm
      Before acting on forum advice, you may wish to consult an expert, someone who has all the relevant facts, and who accepts liability for their advice.

      Comment


        #4
        Originally posted by property mongrel View Post
        If this is an AST, the T can give a month notice but the LL has to give the T 2 months notice regardless of what the contract may say.
        This is a break clause to end a fixed term tenancy: It may allow the landlord to give less than 2 months notice.

        Comment


          #5
          Wannadonnadoodah,

          If the landlord refuses is there anything I can do? My rent was already high and in advertising the room to find a replacement tenant he has also asked me to raise it even higher.

          Comment


            #6
            Originally posted by property mongrel View Post

            Did you pay the LL a deposit, was it protected?

            pm

            I did, and it is protected. However I'd be happy to lose the deposit (it wasn't that much money) in order to leave - I just wouldn't want the uncertainty of not knowing if the LL would try to sue me / take me to court regarding rent up until the full 12 months.

            Comment


              #7
              One rental months notice may be given by either the tenant or landlord after a period of six months has expired from the start of the tenancy to terminate the tenancy subject to the replacement tenant being acceptable to both the landlord and the remaining tenants

              I am trying to work what the effect of the red is.

              Comment


                #8
                Originally posted by Georgia123 View Post
                I did, and it is protected. However I'd be happy to lose the deposit (it wasn't that much money) in order to leave - I just wouldn't want the uncertainty of not knowing if the LL would try to sue me / take me to court regarding rent up until the full 12 months.
                The landlord would be required to mitigate their losses, they couldn't just sue you for the "lost" 6 month's revenue.

                What text in the agreement makes you responsible for finding a new tenant - if you leave the next tenant isn't a "replacement", they're just a tenant.
                Its a tenancy, you're not regenerating.
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #9
                  Lawcruncher,

                  Yes, I did ask a friend who is a solicitor about the break clause and their opinion was that it's not worded well - as it seems to suggest that if there is a replacement tenant, they need to be acceptable to the landlord and remaining tenants. However, it doesn't say that I can only leave subject to there being a replacement tenant i.e. my leaving isn't dependent on a tenant being there.

                  However the solicitor said it could still be argued either way and wasn't 100% confident in what they told me, hence my asking here as well

                  Comment


                    #10
                    Originally posted by jjlandlord View Post
                    This is a break clause to end a fixed term tenancy: It may allow the landlord to give less than 2 months notice.
                    I stand corrected, thank you.

                    pm
                    Before acting on forum advice, you may wish to consult an expert, someone who has all the relevant facts, and who accepts liability for their advice.

                    Comment


                      #11
                      Originally posted by jpkeates View Post
                      The landlord would be required to mitigate their losses, they couldn't just sue you for the "lost" 6 month's revenue.

                      What text in the agreement makes you responsible for finding a new tenant - if you leave the next tenant isn't a "replacement", they're just a tenant.
                      Its a tenancy, you're not regenerating.
                      Sorry, I'm quite new to this. How would they be required to mitigate their losses - what would that mean/involve?

                      I personally don't think that anything in the break clause makes me responsible for finding a new tenant but I wanted to check what other people think.

                      Does that mean you think it would be safe for me to leave? I feel like I've been very helpful in trying to find a new tenant but I don't really know the full implications of the wording of the break clause or how a court would rule if the LL and I did disagree on this.

                      Comment


                        #12
                        If it was me (and it isn't, I'm safely not in your shoes) I think I'd give the landlord notice, wish them luck finding a replacement and go.

                        The landlord would have to argue that the clause implies a replacement that you find (which it does) and you would disagree, claiming that the term does no such thing - because the term allows the landlord to give you notice, did the landlord really mean to make that subject to the other tenant's approving of a replacement (and in that case who finds the replacement, surely not you?).

                        The landlord can get as stroppy as they want, you would still leave and the landlord may or may not sue you for the rest of the months income.
                        If they do, you would ask the court to agree with you and the landlord would ask them to agree with him.

                        The landlord still has an obligation to mitigate their loss.
                        I would suggest that the clause is essentially unfair in the landlord's interpretation as it is essentially one sided (the landlord can simply keep saying no, making your option worthless, while you can't say no if he gives you notice).

                        You seem to be no worse off (other than any costs that can be awarded against you - which are limited if the landlord uses the small claims procedure) than being stuck there for the rest of the 12 months.
                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #13
                          Originally posted by Georgia123 View Post
                          Sorry, I'm quite new to this. How would they be required to mitigate their losses - what would that mean/involve?
                          By mitigate their losses, they would have to show a judge that they had diligently tried to replace you all the months that they were trying to sue you for.

                          The landlord can't simply give you a bill for six months when you leave (well they obviously can, but you would laugh in their face and throw it back at them with contempt).
                          They can only recover what the contract obliges you to pay, provided they weren't able to reuse the room you were renting.
                          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                          Comment


                            #14
                            Well, it's really unfair if it's a high rent AND he's asking for an increase rent from the new tenant, that doesn't seem like a level playing field at all. It should be like for like as a bare minimum.

                            Where is the property? Would your room make for a good airbnb let? You could try, make some money out of it, annoy the people you pube with and dot like and get accused of sub letting without permission, breaking the terms of your tenancy and you never know but the LL in his anger could evict you for it, which would be great for you.
                            "I'm afraid I didn't do enough background checks apart from checking her identity on Facebook" - ANON

                            What I say is based on my own experience and research - Please don't take as gospel without first checking the gospel yourself.

                            Comment


                              #15
                              Originally posted by Georgia123 View Post
                              Yes, I did ask a friend who is a solicitor about the break clause and their opinion was that it's not worded well - as it seems to suggest that if there is a replacement tenant, they need to be acceptable to the landlord and remaining tenants. However, it doesn't say that I can only leave subject to there being a replacement tenant i.e. my leaving isn't dependent on a tenant being there.

                              However the solicitor said it could still be argued either way and wasn't 100% confident in what they told me, hence my asking here as well
                              Quite.

                              Since it is difficult to work out what the clause means I think the way forward is to argue that it is interpreted in favour of the tenant.

                              I started a thread on the clause here: http://swarblaw.co.uk/viewtopic.php?f=7&t=4830

                              Comment

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