I currently have a 12 Month Fixed Term AST. This was generated on the 1st January. I served a Section 21 on the 6th September. In the Open Rent AST that I used when creating the agreement, there is a break clause stating:
Mutual Break Clause
12.6. The Initial Term of this tenancy agreement may be terminated by either party giving the other at least two months’ notice in writing, such notice not to expire until at least 6 months after the start of the Term. A notice served by the Landlord under section 21 of the Housing Act 1988 shall be sufficient notice under this clause.
The Housing Advisor for the tenant is saying that the Section 21 is invalid, this is the reply by the advisor:
The Tenancy Agreement states that it is a 12 Month Fixed Term Assured Shorthold Tenancy. While they are in their fixed term, there are only very specific reasons where the tenancy can be broken. Priority is set, first and foremost, to the fixed term part of the tenancy.
The evidence provided by yourself, and your tenants appears to show a direct corelation between the time they went into arrears, the 03 September 2024, and the date the notice was given, 06 September 2024. No other evidence was provided to show just reasons for the Fixed Term being broken.
The advisor has yet to acknowledge the break clause, and is maintaining that the Section 21 served is invalid. Further stating that if start a possession order, she will build a defence for the tenants and if the court rules in their favour, I will be liable for the court costs.
I believe the Section 21 is valid, it was served in the correct way, and all documentation is correct. Is it worth paying a solicitor £400 to look through the documents to say whether I am right or not?
I’m uncertain without knowing all the details, but I want to say that if you are also uncertain then I would say it is worthwhile. Others who are more experienced will no doubt add clarity.
Personally, I’d say that there seems no benefit at all in having a 12 month term with a 6 month break clause rather than a simple 6 month initial term as standard. Certainly, it would have avoided the issue you’re now facing. No help for now, I know, but something to bear in mind for the future.
I’m not sure that this is a fixed term tenancy. Clause 12.6 mentions the “initial term”, suggesting that its a Contractual Periodic Tenancy with a longer initial term. You can check if it says somewhere that the tenancy continues after the initial term. Break clauses are not a great idea in CPTs imo, partly because they’re redundant. Its better just to have a shorter initial term because the tenancy will continue anyway. I have no experience of using a break clause with a CPT, but I would guess that its largely the same as for a fixed term tenancy, which is that they break the initial/fixed term and the tenancy then becomes periodic, so the normal rules of s21 then apply to end the tenancy. You should definitely check this with a housing lawyer.
Its possible that the housing advisor has missed the break clause when reading the contract. If clause 12.6 is complete and there’s no other reference to the break clause, then you should check the Nearly Legal s21 flowchart to make sure its compliant. There are no grounds required for a s21 notice, so If all is correct, the notice should be valid.
I’m very confident you have interpreted the contract correctly. Its a 12m AST which has not yet rolled into a contractual periodic tenancy. The tenancy has a break clause, which you have taken advantage off.
That said, I’m no Lawyer & won’t be in court fighting by your side, so I’d speak to an eviction specialist for advice before proceeding either way.