Tenancy Break Clause Help!

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    Tenancy Break Clause Help!

    Hi all,

    I was hoping you could help me with something.

    I currently have a two year contract which we signed through a Letting Agent. Prior to signing we requested that a 12 month break clause be added which we have written confirmation back saying it would be included.

    We've come to the point of reviewing this and noticed that it's not in the contract. Our own fault in some instance for not checking, but without making excuses we were juggling 1000s things.

    My questions is where do we stand on this, can we either enforce the email or seek for compensation on the £660 we spent on the contract since they have failed to undertake their responsibilities as agreed?

    Many thanks

    #2
    Are you tenant or landlord? Are you wanting the exercise the break clause? (If so what losses if you can't?)

    You certainly have a case for compo due to their negligence - which I would think you've a fair chance of winning: If you can ever collect the ££££

    How exactly was it worded (no names or addresses) that there was this agreement? (eg "yeah, we'll plan to do that" or "it is agreed we will insert the enclosed clauses 22 & 23 in the contract").

    £660 for a tenancy contract when mother Theresa provides one for free???
    https://www.gov.uk/government/public...ssured-tenancy
    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

    Comment


      #3
      Originally posted by theartfullodger View Post
      Are you tenant or landlord? Are you wanting the exercise the break clause? (If so what losses if you can't?)

      You certainly have a case for compo due to their negligence - which I would think you've a fair chance of winning: If you can ever collect the ££££

      How exactly was it worded (no names or addresses) that there was this agreement? (eg "yeah, we'll plan to do that" or "it is agreed we will insert the enclosed clauses 22 & 23 in the contract").

      £660 for a tenancy contract when mother Theresa provides one for free???
      https://www.gov.uk/government/public...ssured-tenancy
      Hi there

      Thanks for coming back to us.

      We are tenants, we loose the increase in rent if we can't break.

      Basically we had an email exchange for a bunch of clauses with a reply on the break clause to the words of "I can confirm we will include a break clause at 12 months". Stupidly we thought this meant that it would be included.

      Naturally now we try and excercise this we cannot due to it not being in the formal contract (I know we should of checked more thoroughly). In terms of the agency fees they're high but that's london prices from what I understand.

      Many thank

      Comment


        #4
        [QUOTE=Mrobins64495;616240

        We are tenants, we loose the increase in rent if we can't break.


        Many thank[/QUOTE]
        Can you explain this more clearly please? You have a 2 year fixed term tenancy?
        Any advice I give is my opinion and experience, I am as you also learning.

        Comment


          #5
          It has an increase after a year, same point in which the break clause applies. Stagnant rental market in our area means we could use the break clause to prevent an increase in our monthly out goings

          Comment


            #6
            Originally posted by Mrobins64495 View Post
            I currently have a two year contract which we signed through a Letting Agent.
            Why oh why would anyone (landlord or tenant) sign a two year contract?

            Originally posted by Mrobins64495 View Post
            We've come to the point of reviewing this and noticed that it's not in the contract. Our own fault in some instance for not checking, but without making excuses we were juggling 1000s things.
            I am less hopeful than artful. Beak clauses fall into the category of specifically negotiated clauses. And the exact wording of them is specifically negotiated and the parties attention is drawn to them when signing. They can't just appear in contracts, or be assumed by default because such a clause was vaguely mentioned (what was the notice period agreed - 5 months?, what did it say about notice by landlord?). They are so fundamental that if there is a written contract, and they are not in the written contract, they are not there (what would you have done if you signed a contract without such a clause and then the landlord proceeded to evict you a year before your fixed period ended having activated a supposed break clause.) There does not need to be a written contract, but if you sign a written contract it is expected that you read it.

            Originally posted by Mrobins64495 View Post
            My questions is where do we stand on this, can we either enforce the email or seek for compensation on the £660 we spent on the contract since they have failed to undertake their responsibilities as agreed?
            You did not spend money on the contract. The agent works for the landlord. The contract was drawn up by the agent for the landlord and presented to you. The agent is not some sort of mediator. You might have been induced to pay the agent for something, but you were ripped off. What were their responsibilities "as agreed" - you have no agreement with the landlord's agent? -- the whole position of agents (not only in your case, but in general) is a real disorganised and corrupt mess.

            Comment


              #7
              Wrong! 5
              AFAIK if AST contains a rent review after 12 months no way to avoid it IMO whether SPT not.
              Whilst rent cannot normally be increased during fixed term, the LL can also activate the 12 month break clause to end the fixed term. The break clause is not effective until activated, normally after 2 month Notice.
              As you would then object to increase in rent, s13 or s21 is the likely outcome.
              As yet you do not know if LL will increase rent.
              NEGOTIATE.

              Comment


                #8
                It would be good to assume that the agency discussed the change in the contract with the LL before agreeing and therefore, the LL was satisfied with the break clause. In that case, it is very possible that they agree to it now. The issue is that it might come with conditions, ie. that you are still liable to pay until a replacement is found kind of statement.

                Comment


                  #9
                  Hi There,

                  The conditions were stated in the original agreement that 2 months notice prior to using the clause would be stated.

                  The landlord is being a bit of an arse about it, basically say it's not in the contract. A situation which really is a bit of a shame, as we've spent a fair bit of money redecorating and generally improving what was a shoddy mess when we moved in.

                  Comment


                    #10
                    Originally posted by Mrobins64495 View Post
                    Hi There,

                    The conditions were stated in the original agreement that 2 months notice prior to using the clause would be stated.

                    The landlord is being a bit of an arse about it, basically say it's not in the contract. ....
                    So you may have a claim against agent....
                    .....A situation which really is a bit of a shame, as we've spent a fair bit of money redecorating and generally improving what was a shoddy mess when we moved in.
                    I do hope you have written agreement to doing that: Otherwise landlord can charge you for cost of returning it to as it was (even if that is worse!)
                    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                    Comment


                      #11
                      There are two separate issues and no obvious resolution outside a court or the two parties agreeing.

                      The agent represents the landlord, so when they agreed to include a break clause, the landlord agreed the same thing.
                      So the landlord can't deny that there should be one.

                      Unfortunately, as AndrewDod has pointed out, there's no such thing as "a break clause" and, while the agent was delinquent if they didn't add one,
                      you probably should have noticed there wasn't one there.
                      Normally consumer law protects a tenant from some "well you should have read the contract properly" issues, but where you specifically ask for something to be changed, you have some responsibility for checking that what's been done is acceptable.
                      Unless you think the agent was being dishonest in their actions or put undue pressure on you to sign the agreement without checking it, I think you agreed it.

                      In practice you have four options (as far as I can see):
                      Follow the agreement as it is.
                      Go to court to obtain a court order to try to compel the landlord to change the agreement in line with the agreement or allow you to leave.
                      Serve notice in line with the missing clause (which would be tricky), move out in line with the notice and see if the landlord pursues you for the rest of the term.
                      Don't pay the increased rent and challenge the landlord to go to court to collect it (they'll serve notice at the earliest opportunity).
                      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


                        #12
                        Whilst most LLs tend to forget LA only acts in their name, and many won't object to an apparent Professional's decision. Similarly for T/LA relationship.
                        T may have verbally requested 12 month break clause and inexperienced office junior said 'We can do that'.
                        LA writes to LL saying 'T has requested a 12 month break clause'. LL may have wanted 24 month AST security so just wrote back and said 'No'.

                        I reiterate, if OP forces break clause, it would have to be 'equitable' for both Parties and could activate Clause to end fixed Term & raise rent if nec.

                        OP, save your money and accept 2 yr fixed term and hope LL does not increase rent. You could still 'offer early surrender' or refuse to pay increase.

                        Comment


                          #13
                          The LL is already increasing the rent which is why when we suggested the 2 year contract with one year break clause it was to allow us to leave should the market or situations change.

                          Without the break clause it's essentially just a standard approach with a yearly increase.

                          Within our email to the letting agents we detailed both the notice period for the break clause and when it was to be implemented. I've been directed that we could seek damages from the letting agents in the sum of the difference in rent due to the ability to change being removed from us.

                          Comment


                            #14
                            This looks a case for rectification, defined as follows in Fowler v Fowler:

                            "Only after the court has been satisfied by evidence which leaves no 'fair and reasonable doubt' that the deed impeached does not embody the final intention of the parties. This evidence must make it clear that the alleged intention to which the plaintiff asks that the deed be made to conform, continued concurrently in the minds of all the parties down to the time of its execution; and the plaintiff must succeed in showing also the precise form in which the instrument will express this intention."

                            The red would seem to be covered as the OP says: "Within our email to the letting agents we detailed both the notice period for the break clause and when it was to be implemented."

                            Comment


                              #15
                              Except that break clauses are negotiated clauses, not imposed by any one party. The more relevant phrase is "continued concurrently in the minds of all the parties".

                              At the moment all we have is that the OP asked for a break clause and dictated it's terms. The fact that this was not in the final agreement could be a) due to oversight or negligence or b) that the other party rejected or wished to ignore those terms (and that by signing the OP accepted that ignoring).

                              Comment

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