Hello, we have a 12 month AST which began on 14/08/20, with a 6-month break clause.
We want to leave at the end of May, so I contacted the agent to ask if that was possible - the fact we’d like to leave at the end of the month rather on the monthly anniversary.
The agent responded and said if we wanted to invoke our break clause it should have been invoked in month 4 (Dec) to leave in month 6 (Feb). I was of the understanding a break clause was any time after the 6 months?
The relevant parts of our tenancy agreement state:
1. Terms of the tenancy
The landlord lets to the tenant the premises for a period of 12 months with a 6 month break clause. The tenancy shall start on and include 14th August 2020 and shall end on and include 13th August 2021.
27.2 If the Tenant vacates the Premises during the Term apart from according to any agreed break clause which is included within the Agreement, the tenant will remain liable to pay Rent and any other monies payable under this Agreement until the Term expires; or the Premises are re-let, whichever is earlier.
23.1 To forward any notice order, or proposal, affecting the Premises or its boundaries, to the Landlord, or his Agent, within a reasonable time of receipt of any notice, order, or proposal. Two months notice is to be given on the anniversary of the rental payment date. This can only be accepted two months before the end of the lease, or then after if this Agreement continues to roll month by month.
Is their interpretation of the break clause correct, or should I be able to give notice now to leave in May?
From what I can understand of break clauses I think they are correct. The six month has elapsed and it was not invoked so thus it’s redundant.
You can now give notice to leave in June to go in August ( on the anniversary of the rent payment).
I am not legal so I may be wrong and somebody else maybe able to shed more light.
As cited, the first sentence of clause 23 has no predicate - is meaningless wrt to winding up the tenancy agreement (there might be preamble). It looks like a word-processing typo …
If the landlord (as opposed to agent) is a decent sort, s/he’ll listen to your request on its merits …
There isn’t a break clause above. There is the mention of a break clause in both clause 1 and 27.2, but there is no detail of how a break clause would operate. However, clause 1 in unequivocal that the tenancy DOES include a 6 month break clause. If you are certain that there is no other clause detailing the break clause then in its absence, it would be for a court to determine what clause 1 should mean. I see no evidence to support the agent’s interpretation and indeed courts will almost always make an interpretation most favourable to the tenant as they are the ‘weaker’ party in the contract and the landlord should know better.
I think my next step would be to ask the agent to reference the particular section of the tenancy agreement that supports their interpretation. Ultimately, I would be looking to move out and challenging them to take me to court if they thought they had a case, but it depends how ballsy you want to be.
Thanks @David122 thats really helpful.
I asked the agent earlier where in my contract it stated the terms they are trying to impose on us, and they believe section 23 applies.
However I believe section 23 is only relevant to giving notice at the end of the term, not if we invoke the break clause.
“Unfortunately the 6 month break clause can only be invoked if you hand in your notice on the 4th month. In your tenancy agreement section 23 it explains the 2 months’ notice required before the end of your tenancy agreement and that it should be given on the anniversary of your rental payment date.”
The agents have referred it to the landlord for their decision but I wanted to be prepared with a response, if they decline to end it early.
I’m 99% certain these are the only relevant sections of the contract - I did a word search for “break” “clause” and “notice”, and scanned through the document - but if there’s anything else I should search for let me know!
@Nicholas16 waiting to hear back from the landlord… he’s hoping she’s takes a pragmatic view!
Section 23 ? No:
- the first sentence looks to be part of a usual reference to the tenants’ responsibility to forward (e.g. official) notices delivered to the premises for the landlord’s attention … but it is textually incomplete;
- the second sentence is floating without reference meaningfully to anything in particular … also semantically mysterious;
- the third sentence looks to be related to the intention of the second, but certainly falls over wrt its predecessor … and ‘then after’ is supposed to mean what in context ?
The break/notice clauses as they read here are a mess - apart from which, it is evidently not possible to give two months notice to a twelve-month fixed term agreement on the anniversary of your rental payment date unless the agreement is intended for fourteen months only (!). It looks like s/o has mistakenly cut & pasted bits from another document …
As David122, I doubt these would be enforceable, if it comes to that …
I agree with Nicholas16 that clause 23 is a mess. The first part bears no relationship to the second and just seems to be about forwarding the landlords mail, although strangely, not all of it. The second part seems to talk about a different type of notice although it doesn’t say notice of what or who can serve it and upon whom. Even if we allow that it means a tenant’s notice to quit, I don’t understand where the agent gets the idea that it can be served in month 4. This is a 12 month contract so two months before the end of the lease is month 10. The only clause that seems to make any sense is clause 1 which says there is a 6 month break clause. I think you should go back to the agent and refute their interpretation on this basis and ask them what they think a court would find.
Thanks so much for your help
I’m waiting for the agent to come back to me in the hope it can be resolved with common sense… but if they decline I will send a strongly worded email with some of the points you’ve made.
We are landlords ourselves, and whilst we’ve never had anyone invoke a break clause this is certainly not how I understood it to work. But often we find agents cause more problems than they solve.
Break clauses are frequently badly worded and often unenforceable for a landlord. In fact I would go as far as to say that the overwhelming majority that I’ve seen fall into this category. I usually recommend people avoid them unless the have a proven cast-iron example from a solicitor. They’re also unnecessary. The same thing can be achieved by just giving a 6 month tenancy that becomes contractual periodic.
My understanding is that from 5 months into a typical 6 month AST agreement, the tenant can give 1 month notice to the landlord that they intend to vacate the premises. ie, they can leave after 6 months from the start of the tenancy without liability to further rental payments, but would have needed to give at least one month’s prior notice to the landlord/their agent. Or, if you want to leave in month 8, you need to have said so in month 7 at the latest, and so on.
So, if you want to leave at the end of May 2021, you are within your rights under the terms of a 6 month AST starting on 14 August 2020, as long as you give notice, at least by the end of April 2021, or before. Items 27.2, 23 and 23.1 above do not affect your rights to leave as stated under Item 1.
If its a regular fixed term tenancy, then the tenant can’t serve a valid notice at all during the fixed term. They have to wait until day 2 of the statutory periodic tenancy that follows it, although they can leave without any notice before mid-night on the last day of the tenancy. If its a contractual periodic tenancy then notice must be served in accordance with the tenancy agreement.
Thanks for your help… the agent finally came back and agreed we can leave in May as we hoped, thanks to a fairly sternly written emailed based on your feedback