Shorthold Assured Break Clauses

[candtd]

Hi,

I have recently asked (via my management agency) for notice to be served on a tenant of mine. In response to this, the tenant has indicted that what we are doing is incorrect and he intends to remain in the property past the expiry date (28th Sep 07) of the Section 21 that my agency issued

The tenant has been in my property around 2 years now and is on his 3rd Short Hold Assured agreement (x2, 6 month, followed by his current 12 month agreement). His 12 month agreement began on 28 Apr 07 and contained a 2 month notice break clause. Following discussion with my agency (who assure me everything is legal) I’m a little concerned that I indeed may be unable to issue notice on my tenant within the 1st 6 months of this agreement (although the agency state that as his current term is a renewal the 6 month thing is not applicable).

Can I ask if anyone is able to advise if what my agency has done is correct or should I expect the courts to throw out my application for possession?

Thanks for any help/advice anyone may be able to offer……

[Colincbayley]

Your agent is wrong.

If your tenant has a new/re-issued AST then you can not get him out until after the fixed term. If you have a six month break clause and the contract started on 28th April 2007, then the S.21 will have to expire after 27th October 2007. However, you must still give two clear months notice, so you would have missed that date now anyway.

[candtd]

Hi,

Thanks for the reply. I think I may have left out a vital bit of info. The 12 month AST had a break clause of 2 months in it (ie. the agreement can be brought to an end at any point by giving 2 months notice to land on a tenancy anniversary date). I gave notice at month 3 (28 Jul) for him to leave at month 5 (28 Sep). This is how the agreement is worded and both my agency and legal insurance company tell me it is correct. Hope that adds all the vitals, please feel free to comment further...thanks again...

[Colincbayley]

Cantd,

I have replied to the PM you sent me.

[lorenzo]

Hi,

Thanks for the reply. I think I may have left out a vital bit of info. The 12 month AST had a break clause of 2 months in it (ie. the agreement can be brought to an end at any point by giving 2 months notice to land on a tenancy anniversary date). I gave notice at month 3 (28 Jul) for him to leave at month 5 (28 Sep). This is how the agreement is worded and both my agency and legal insurance company tell me it is correct. Hope that adds all the vitals, please feel free to comment further...thanks again...

What am I missing? How can it be a fixed term, yet you can boot the tenant out whenever you want with 2 months notice just like as if it is a statutory periodic?

Seems like an unfair term?

[Colincbayley]

What am I missing? How can it be a fixed term, yet you can boot the tenant out whenever you want with 2 months notice just like as if it is a statutory periodic?

Seems like an unfair term?

Your not missig anything lorenzo, it is a fixed term with a 6 month break clause.

[lorenzo]

Your not missig anything lorenzo, it is a fixed term with a 6 month break clause.

OK gotcha.

I'm still baffled by the whole 6 month break concept, doesn't make sense to me... que sera sera.

[Colincbayley]

OK gotcha.

I'm still baffled by the whole 6 month break concept, doesn't make sense to me... que sera sera.

I think it's daft as well, either issue a 6 or 12 month agreement and be done with it.

[PaulF]

Just a point on break clauses as I mention it frequently. Unless a break clause has been individually negotiated netween landlord and tenant and shown to be as such within the AST then its validity is extremely questionable. If it is within the main body of a tenancy agreement then it will probably be an unfair term for a landlord to be able to serve Notice on a tenant within any fixed term. Ask Pain Smith or another similar firm of specialist solicitors who should endorse what I say.

[jeffrey]

Also, the six-month rule does NOT apply to a re-let involving same L/T/property (a "replacement tenancy") as long as the Court Order is dated at least six months after the first tenancy began: see s.21(5)(6)(7) of the Housing Act 1988.

[Colincbayley]

Also, the six-month rule does NOT apply to a re-let involving same L/T/property (a "replacement tenancy") as long as the Court Order is dated at least six months after the first tenancy began: see s.21(5)(6)(7) of the Housing Act 1988.

Now I am confused?????

I have had a look at S.21(5)(6)(7) and it does indeed say that.

However!! If a new AST has been signed with a min. 6 month term are you saying that this min. term would NOT apply?

[jeffrey]

Now I am confused?????

I have had a look at S.21(5)(6)(7) and it does indeed say that.

However!! If a new AST has been signed with a min. 6 month term are you saying that this min. term would NOT apply?

IF it is a replacement tenancy, as defined, YES: the six-month rule would apply only once (from start of initial tenancy).

[Colincbayley]

IF it is a replacement tenancy, as defined, YES: the sx-month rule would apply only once (from start of initial tenancy).

OK, I've got that bit, But what about the AST where it says 'a term certain of six months'
Is this not valid, or have I now lost the plot!!

[jeffrey]

But s.21 never applies so as to give possession during a fixed term.
It simply provides a possession mechanism, operative after fixed term, or if tenancy was always periodic-
PROVIDED that T has been there for at least six months.

[Colincbayley]

OK, got it !
Cheers