"Early" Early break clause.

[lorenzo]

OK here is a situation a friend of mind finds himself in:

* Signed 18 month AST on May 14 with early break clause

* Agreement states the AST can be terminated at any time after October 31st with two months prior written notice. (Only 5.5 months from AST inception)

* LL wants to sell so T has been served S21 to expire after Oct 31, contravening s.20(1)(b)

Question is what is the disposition of the s21? Is the effect simply deferred to Nov 14, or is the S21 invalidated altogether?

TIA

[lorenzo]

More information:

The S21 was hand delivered on Sep 2, less than two months before the date of expiry on the S21.

[Ruth Less]

At face value I'd say the S21 is invalid and therefore a new S21 would need to be served. But sometimes the LL puts some weasel wording into the S21 to cover the case of a cockup in the dates. An example is the S21 from this very website:

http://www.landlordzone.co.uk/section-21-notices.htm

As a "catch all" safety net the Free LandlordZONE Section 21 Notice (see: Agreements and Notices) has the following phrase:

"...the landlord requires possession after the date stated in this notice or at the end of the period of your tenancy which will end next after the expiration of 2 months from the service upon you of this notice"

This latter phrase has been held to be effective on appeal (Lower Street Properties v Jones (1966) but many judges are not aware of this, so be prepared to point it out.

So it depends if your mates S21 has any weasel wording or not.

Also I thought break clauses are not that reliable, they can often be invalid. The tenant would also need a break clause for it to be fair. I think the tenant can reasonably expect the contract to run for the full term unless the break clause is pointed out to them. Try looking in OFT356 to see what they say about break clauses.

[Ruth Less]

Extracts from OFT356 on break clauses:

Group 6: Cancellation clauses - paragraph 1(f) of Schedule 2

Group 6(a): Unequal cancellation rights

3.60 Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of: (f) authorising the seller or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer.

Misleading termination clauses

3.61 Tenants with assured and assured shorthold fixed term tenancy agreements are legally protected against eviction before the fixed term expires. We do not object to the inclusion of terms allowing either party to terminate the agreement early (known as 'break clauses'), but would challenge any term stating or implying that the tenant could be evicted at any time at the landlord's discretion as being seriously misleading.

3.64 An assured shorthold tenancy that has no fixed term gives the tenant security of possession for the first six months of their occupancy of the property and a landlord cannot bring the tenancy to an end during that period except by forfeiture (see above).

3.65 Landlords sometimes choose to use a 'break' clause allowing them to bring the agreement to an end on service of two months' notice. We would object to such a term if it was not balanced by a similar provision allowing the tenant to give notice in the same way.

[Colincbayley]

OK here is a situation a friend of mind finds himself in:

* Signed 18 month AST on May 14 with early break clause

* Agreement states the AST can be terminated at any time after October 31st with two months prior written notice. (Only 5.5 months from AST inception)

* LL wants to sell so T has been served S21 to expire after Oct 31, contravening s.20(1)(b)

Question is what is the disposition of the s21? Is the effect simply deferred to Nov 14, or is the S21 invalidated altogether?

TIA

Sounds like your friend has stuffed it up to me.
Best bet is to issue a correct S.21 now.

[lorenzo]

Ruth,

Thanks for that info. I'm pretty sure it's a bilateral break clause, but will pass that on just in case.

Colin,

My mate is the tenant. New info => The S21 is dated Aug 31, but it was simply pushed through the door. and could have been delivered anytime after 5:30 pm on the 31st to sep 2 as he was away between these times.

Is this notice going to be valid or not, bearing in mind the less than six months business?

[Frizzers]

Hi Lorenzo,

Have you seen this thread.

The situation is virtually identical.

I wonder if it is the same LL?

http://www.landlordzone.co.uk/forums...ead.php?t=7810