Tenancy Agreement Break Clauses

I personally don’t have break clauses in my Tenancy Agreements, and I’ll tell you why, just after I’ve covered the basics…

What are break clauses in Tenancy Agreements?

A Break clause is a clause in tenancy agreements provide an opportunity for the tenant and/or the landlord to give notice (typically 2 months notice) during the fixed-term of the tenancy to end the tenancy early. Essentially, either party can “break” the tenancy before the end date, as long as the correct procedures are followed.

However, it’s important to note, even if the tenancy does include a break clause, the Housing Act 1988 prevents the court from awarding possession to a landlord until six months into the tenancy has passed from the beginning of the agreement, unless the landlord is using one of the seventeen statutory grounds for possession, in which case the landlord has rights to evict the tenant and should serve a Section 8 Notice. So, break clauses typically stipulate that they can only be enforced 6 months into the fixed term of a tenancy.

Here is an example of a break clause (please do NOT use it, this may not be valid):

20 Mutual breaking clause
Any time after six months of the initial fixed term of this tenancy either party may invoke this break clause by providing a minimum of 60 days written notice to the other (such notice to expire on the last day of a rental period of the tenancy). At the end of such notice the tenancy shall end and all obligations and responsibilities shall cease; subject nevertheless to any claim by either party against the other in respect of any breach of any of the terms and conditions of the agreement.

Giving notice

The landlord is required to provide at least two months notice to the tenant if they wish to enforce the break clause by serving a Section 21 Notice. So for example, if the tenancy starts on 1st of January, the landlord should serve notice on April 1st, which means the tenant should vacate on June 1st (6 months from when the tenancy began).

If the tenant wants to enforce the break clause, they must also give 2 months notice to the landlord by serving a written notice (not a Section 21) after 6 months into the tenancy. The tenant should serve a written document with signature, surrendering the tenancy.

Please note, the correct party should receive the notice before or on the day of those dates.

Why the break clause is used

Break clauses really are about flexibility for both tenant and landlord. They provide landlords/tenants the opportunity to break a tenancy if personal circumstances change. This could include scenarios such as relocating for work related purposes, or even because the relationship between the tenant and landlord turned sour.

The reason I don’t use break clauses

As mentioned, I don’t use break clauses in my tenancy agreements, the reason being is that they don’t seem convincingly reliable (from what I’ve read and been told), which makes them kind of scary to me. Let me explain…

Assuming that the landlord has enforced the break clause by serving the tenant notice after 6 months into a 12 tenancy agreement. If the tenant stays in the property after the expiry, the landlord will need to issue Court proceedings and ask a Judge to order possession. The Judge will then look at the break clause to see if it is valid. If the Judge is not happy with the clause the landlord will not get possession.

The break clause is one of those clauses that can be drafted and interpreted in many ways (apparently). If the clause is clearly drafted and equally fair to both parties, the landlord will have a better chance of getting possession. However, if the clause is poorly drafted and deemed unfair (e.g. if it is in the favour of the landlord), it is very unlikely that it will be valid. Unfortunately, when the landlord has got to this stage they will have incurred a Court fee of £175 and possible Solicitors costs.

To be fully enforceable in law, break clauses need careful drafting with a high degree of legal expertise – these agreements should be drafted by a solicitor or barrister, or obtained from a known reliable published source.

The preferred alternative to a break clause

Personally, I’d rather just issue my tenant with a 6 month tenancy agreement. That way, even if the tenant fails to vacate after 6 months, the Judge should give me possession immediately because the tenancy has expired, no questions asked.

If after the 6 months tenancy both parties are happy to continue the tenancy, then the tenancy can either roll onto a Periodic Tenancy or a new tenancy agreement can be issued.

Issuing a 6 month tenancy just seems much safer and reliable because there’s little margin for error in comparison.

Surrendering a Tenancy

If a tenancy agreement does not contain a break clause, but both landlord and tenant want to break the tenancy earlier than the fixed date, then they can both surrender the tenancy. This can just be a written document that states both parties agree to terminate the tenancy early, with both parties signatures.

If the landlord does not agree to the surrender, the tenant will be contractually obliged to pay rent for the entire length of the fixed term. If it is the landlord wishing to have the property back, the tenant is entitled to remain in “quiet enjoyment” of the property and the landlord is obliged to follow the statutory termination provisions at the end of the term.

Do you use break clauses?

Do you use a break clause in your tenancy? If so, I’d be interested to see what it says. Would you mind copy/pasting it? Also, has anyone ever enforced the break clause?

32 Comments - join the conversation...

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YesAdam2011-07-12 11:19:40

Nice Article Landlord.

Six months is not a long time, using a break clause during these seems unreasonable. I have seen it used where a Landlord needs possession to personally live in the property but other than that break clauses should not used on a whim.

On the other side, I was legally advised if a tenant can not use a break clause and leaves the property before the term.
They owe full monies (six month) or until the day that a new tenant moves in. This debt of can be collected, sold or just absorb the deposit.

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The Landlord Avatar
The Landlord2011-07-12 15:55:13

Hey YesAdam,

Thanks a lot!

I've also heard of cases where the clause has been used so the landlord could move into the property. I actually was going to mention that as an example, but for some reason didn't go through with it.

Yup, tenants are legally obliged to pay rent up until the agreed date if they vacate early. But extracting that money can some times be more hassle than it's worth. If I was in that situation, I would try to recoup the rent, but my main focus would be spent on trying to find new tenants!

Cheers

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Ginster2011-07-13 07:20:26

Is this break clause aka Section 21?
Can this be served alongside the start of a Tenancy Agreement? I'm not too clued up in this area but if it were possible surely it makes sense to?
Say you draw up a 6 month tenancy contract and the Tenant stops paying rent in the second month and this carries on - what do you do?
Would also be interested to hear your views.
Thanks in advance...

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The Landlord Avatar
The Landlord2011-07-13 07:54:58

Hey Ginster,

No, the break clause is not a Section 21. Although, the landlord should serve a section 21 to break the tenancy if there is a break clause and they wish to terminate the tenancy, if that makes sense.

The section 21 is used to give the tenant notice of possession at the END of the tenancy (or in the middle if there is a break clause). So for example, if you have a 12 month tenancy, you should serve the Section 21 ten months into the tenancy so the tenant knows the landlord wants the property back. A lot of landlords assume that if a tenancy has fixed dates in a tenancy agreement, the tenant HAS to move out on the end date stipulated. That's only true if the landlord serves a section 21, otherwise the tenant is entitled to stay and the contract becomes periodic! The landlord must give at least 2 months notice when serving the section 21. You can serve a section 21 alongside the start of a Tenancy Agreement. But the possession date must be at the end of the fixed date in the tenancy agreement or after, or any time after 6 months if there is break clause.

If your tenant stops paying rent for 2 months at any time, then you should serve a section 8, not section 21!!

The important difference between a Section 8 and Section 21 is that you serve a section 8 when a tenant is in breach of contract e.g. stops paying rent! You only serve a section 21 when the landlord wants to regain possession at the END of a tenancy, and not because the tenant has necessarily done anything wrong.

I hope that makes sense.

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Ginster2011-07-13 08:24:30

@ Landlord.
Thanks for clearing that up!! It makes perfect sense!
Luckily I've never needed to issue a section 8.
Before this conversation I didn't even know what a section 8 was.....'Oooops!!'
Thanks Landlord!
Really appreciate your help.
Thanks for reaching out!! :D

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laura2011-12-12 15:19:03

I have a tennancy agreement on an unfurnished house date 24th June 2011 to 23rd June 2011. The landlord on a whim issued notice for me to leave on the 6th December not quite 6 months giving two months notice to vacate in Febuary. I have been a perfect tennant paid my rent and not broken any clauses in agreement the landlord has evoked a break clause with no reason and is putting it back on market to rent again. Problably to increase rent. This seems completely unjustified and even the neighbours and estate agent have tried to reason with the landlord. Do I have any right in this situation?

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gaynor mcturk2012-03-30 17:04:16

I am in exactly the same situation as Laura above.
Perfect tenant and no breach on contract. I go two months notice after 6 months (break clause) even though they knew I wanted to stay for one year and purchased furniture. Endless problems with things going wrong in apartment and no ok and dandy am being asked to leave so as their brother can move in. A very cold winter flat and they did not supply heating as promised.....I feel as they only gave notice end of 7th month and not after the 4th month as stated above, they are not entitled to get me out.

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Lind2012-08-12 11:19:30

Hi all

My landlady has just written to me telling me that my contract has ended and that I have breached the agreement on the bases that I did not set up arrangements on paying rent o. A different date. I have always paid my rent on the day it falls due or a day before. As I changed jobs and got paid late I laid the kabdlird rent 2 days late last month. This is the reason she states in the contract why the contract is being ended. My contrat us a 12 month one with a 6 month clause. After 4 month it states either party can give motive. I have been here fit 4 months now. Ive heard it is not right for a landlord to give notice for no reason? Please can someone advise me if this is right.

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Clarissa2012-08-13 12:33:17

Hi, I'm looking for some advise. This is what my tenancy agreement says about the 6 month break:

Either party shall have the right to terminate the Tenancy no earlier than at the expiry of the first six month period and at any time thereafter by giving not less than two months notice in writing to that effect. Such notice should be addressed to the Agent: xxxx
Upon the expiration of such Notice this Agreement and everything herein contained shall cease and be void subject nevertheless to the right of the parties in respect of any antecedent breach of any of the covenants or conditions of this Agreement.

Does this mean that I can hand in notice on say the 17th of the month and leave two months later (even though my contract began on the 12th of the month)? Or does it have to be from the 12th I give notice - so I couldn't give notice now until 12th September?

Thanks for any help.

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Raj2012-11-27 12:09:53

I have signed a 6 months contract recently. I started living in the house with my family and a child of 2 years. But now i see all the walls are damping and fungus is growing. The house is getting very very cold and the heaters are not working properly. because of these bad living conditions i want to terminate the contract before 6 months time. is it possible. please urgent

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Aisha2012-12-04 02:13:54

i have recently sign a contract to rent a flat, i have given the estate agent £500 as security deposit and admin fee, i now do not wish to move into the property and told the estate agent about it as well, they first asked me to pay the rent for the whole fixed contracr which is 6 months, but then said if u pay 0ne month rent we will release you from your contract, my question is, if i refuse to rent a property before moving in to the property, do i sill have to pay the money, they are holding the £500 aswell which was towards the admin fee and part deposit money.......CAN ANYONE ADVISE ME ON THAT PLEASE.....

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Aisha2012-12-04 02:17:10

in the agreement, its all about moving out early than the fixed term and nothing mentioned if i refuse to move into the property .... i have signet the tenancy agreement but i m physically not he tenant yet

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Jeremy2012-12-04 21:51:31

Hello Aisha,

You may not like this advice, but...

You have signed a tenancy agreement. You are legally oblidged to fulfil the conditions even though you have not yet moved in.

If you have changed your mind then the law expects the landlord to re-market the property promptly to cut his rental income lost to a minimum. But the landlord can expect you to pay the balancing amount up to what he would have lost.

Bearing in mind December is a very slow month for people taking out new rental agreements, the offer from the agents seems an appropriate approximation of the financial loss you are likely to cause the landlord and are legaly required to pay him.

Whether you have moved in or not is not relevent. Imagine, on moving in day, a landlord said to you they had changed their mind on some whim and you could no longer live there. That would cause you serious grief. The law expects him to hold to his promise of making the flat available to you and it also expects you to follow through on your promise to move in.

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dawson2012-12-10 16:17:47

I have a tenant who made contract minimum live 6 months.
Also I noticed before they moved n do not pa late due day however they paid very late every week after.
Now they live only 2 month and noticed to me just one week before the pay day. In this case should I give back all deposit or not?
Please let me know.
thanks.

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Tangy2013-07-23 11:42:49

had to shift to another country for work due to which I needed to vacate my accommodation in London two months prior to the end date. I had explained the situation to my landlord over the email. He had first said that I could return my keys and he will then refund the security deposit. I had returned the keys on June 15th.

However, he is now demanding the remaining two-month rent saying there is a no-break clause in my agreement. My lease expires on Aug 25th.

I just wanted to get basic advice if anything can be done in this regard.

Really appreciate it.

Thanks

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Robert2013-07-26 18:02:58

I moved in on an Assured Short-hold tenancy of 1 year from 24 january 2011 to 24 january 2012, then have stayed on ever since on a periodic month to month. The rent is £750.00 a month and I paid £1038 deposit and £750.00 in advance. Therefore I pay rent in advance and my deposit with the agent deposit scheme. I have now been given 2 months notice to quit. So am I still obligated to pay rent over the next 2 months considering I pay one month in advance and they have my deposit? I will need my deposit and rental between this period to move to the next place of abode. Can I just stop paying the rent and move out on the agreed date at the end of the 2nd month? Please help urgently! Thanks

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Aditya Kumar2013-07-29 16:11:23

I entered in AST tenancy agreement on 22nd June 2013 but due to the bad behaviour and idiotic terms of Landlord (he wants to inspect the flat every week for first 3 months) i wanted to surrender the tenancy to which the Landlord refused. I have a 6 month break clause as i had specified to the Agency and Landlord at the on-set itself that i would leave after 6 months. However the break clause is confusing about whether i have to serve the notice of 2 months after the break clause i.e. after 6 months (in which case if will have to vacate after 8 months) or i can serve the notice at the end of 4th month and vacate after end of 6 months. The break Clause is written as follows "This is a 12-month agreement with two month's notice, but also has a 6 month clause two months' notice. This is a 6 months Break Clause where the tenant must give two months notice." So can i leave in 6 months or will i have to stay till 8 months?

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ashleigh2013-08-03 15:38:20

PLEASE can someone help me i have moved into property 16th feb 2013 its a 12 month assured tenanncy its a two bed house there is me a daughter aged 12 son age 5 my two kids share a room. i am on council list been offered council house. Can i end tennancy on the case that i reported a bedroom double glazed window which is also a firs escape window which will not open and needs lock replacing to be fixed for 5 months now and they still not done it every week im phoning about it chasing it up also i pay 115.00 rent a week where council property been offered is 70.00 so is much more affordably.please can some one help me thank you

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Kayleigh Bennett2013-08-06 10:55:09

We had a 12 month contract with a 6 month break but were under the understanding that the landlord didn't want to do anything with the property and that it's definitely a very long term lent. 4 months in to our lease we got section 21 asking us to vacate on Oct 30th which will being our 7 month here. We have no savings so we have no deposit or reference fees or agency fees to be able to move by October 30th. The agency have lied to us from day one, we've had nothing but trouble with the lettings manager and now we will be homeless with 2 kids under 6 years old! A break clause is a joke and I'll never agree to one again

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karina2013-11-24 22:17:20

Hi, I am French and I paid 6 months rent for a house in London in September and decided not to go back to London after all. I talked to my landlord who told me I could not leave the house within three months and the only way for me to get my money back is if I find a new tenant.
The three months notice is coming to an end and the landlord is not willing to give me my money back unless I find a new tenant.
In France it is illegal not to pay back tenants after the 3 months notice.
I would like to know if he has the right to demand that I find a new tenant before giving me my money back.
Thanks in advance for the help.

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andy2013-12-04 19:56:44

hi ok so we are tenants. we have a 2 year contract with a break clause after 12 months, we now want to/ might need to, use this, but, look to move to a standard form of contract or would have to under the break clause give notice.
Our circumstances have changed and we might be having to move in 2 months February (Work related) if not though we want to stay were we are we have been in the village for 6 years and would happily stay for another if this opportunity falls through.
we would know by the first week of january so timing is bad or good which ever way but can't be stuck for another year paying rent if we do move.
What is the legal situation our year break clause is December 29th we will know by january 7th so one side says we can't miss the opportunity so will have to give the notice by the 29th december but with 2 young children we can't afford to move and keep paying the rent but can't again be homeless which is what will happen if the new work doesn't happen.

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dawn2013-12-11 09:56:18

Hi i need some advice please, i had a 12 month tenancy started on feb 8th 2013 and in the tenancy this included a break out clause i was required to give the landlord one months notice on the rent due date. i have done this and paid all my rent up to date and left the property in a very good state considering reason for moving was extreme damp which caused me to be ill and i have been referred to a chest specialist. i have not heard anything back from the estate agents yet regarding deposit am i still entilted to receive my deposit back as i owe no money and they cannot put tenants in the property until they sort out the damp problem which i had been contacting them about for months ????

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ashleigh2013-12-11 10:06:36

To dawn yes you are entitled for your full deposit back. Did you get a certificate that your bond was paid into a bond security account. Basically it will state that your bond was paid to a specfic company and there contact details. You would normally have to wait 10 days after you have moved out of the property. Also have you had your last walk around inspection? As long as all is left clean tidy reasonable condition and monies paid you are entitled to get your bond/deposit back hope this helps

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Valentino2013-12-11 13:14:44

My 2 year tenancy has expired oktober 2008, ever since I pay my rent every month. Now suddenly (more then 5 years later) my landlord is asking me to sign a new tenancy of 2 years with an "break clause" from 1 month for both parties.
Wy I do need a new tenancy? and what's in it for me?
If I don't sign what are my rights?

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Aditya Kumar2013-12-11 14:16:57

If you have left the property with proper break clause (and if they have acknowledged it) and they had not protected your deposit with and Deposit schemes you can report the matter to "Tenancy Relationship officer (sometimes called as Landlord/ Tenant mediation officer)" of your concil or can even approach court in which case you will get your entire deposit back (irrespective of in what condition you have handed the property back) plus some compensation as well (which can be upto three times the deposit value.

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Valentino2013-12-11 15:58:08

Over the years, new regulations have been passed through I know. Point being, My landlord allowed the contract to continually be periodic for a long period of time (5 years), it can slowly become out of date.

When becomes a contract out of date?

Thanks in advance!

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lemonroyale2014-01-06 18:11:19

Can you tell me what this means please?
My clause!

"Both parties have the right to terminate the tenancy at the end of the first six month period only from the commencement date by giving not less than two months notice (at the end of month four) in writing to that effect and upon the expiration of such notice this agreement and everything herein contained shall cease and be void subject nevertheless to the right of parties in respect of any antecedent breach of any of the covenants herein contained."

Does this mean i can only leave at 6months in and 12months in? Or does it mean i can leave any time after 6months (giving 2months notice) ?

thanks!

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PRERNA2014-01-14 14:17:23

Hi,

I have a Question.

My landlord has used a break clause and has given us a notice period of 60 days ending in March 2014.

Now I have found a house within 15 days and the new landlord wants us to move immediately.

Does it means that I have to pay rent for both the places as I will be shifting in new house immediately.

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Rohit2014-02-09 23:28:14

Hi,

I need a advice if anybody can ,
My 6 month contract is ending on 27 -FEB-2014 and I have served the notice to Agency on 31-JAN-2014 that I am vacating the property on 27-FEB-2014.
My rent pay date is 31St of Each Month ( 30 for odd months)
Now the agency is asking me to stay till march -14 as I have servered the notice on 31-JAn (which is start of next rental period) so my 1 month notice will be considered in next month (march-14)
Is it right ? or agency is just trying to making money from me ? can I vacate the property on 27th Feb?
Any advise / help is much appriciated.

Thanks

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Aditya2014-02-10 13:08:41

Hi Rohit,

Was your contract for 6 months only? Was it ending on 27th Feb 2014? If it was then, I guess, you do not even have to give the notice. And yes you can vacate on 27th Feb. However, if your contract was longer and you want to break your contract in between using the break clause then you should have given the notice little earlier (on or before 27th Jan 2014). You just got late by 3-4 days and the Agency can indeed ask you to stay longer (Could you please provide the exact wordings of your break clause and the notice period).

Regards,
Aditya

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Jeffery2014-03-03 15:43:35

I have three bedroom house and rented it out to couple with one small kid. Inside my tenancy agreement I have 6 month break clause and 12 month fixed tenancy.

When visiting the property within 2 month I was surprised he converting the leaving room into his bedroom and all the other room his renting out to different families. I have notice a lot of weir and tear. can I invoke the break clause.

How hard would it be to evict them. Does it have tendancy to drag through court.

Please The family passed credit and landlord reference before moving in.

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Gabriel2014-03-16 17:17:54

I'm a tenant. I signed for a 2 year Tenancy Agreement with a break clause after the first 12 months. After 10 months the Landlord has given me a 2 months notice to leave the property. Can he do that or he should have to wait until month 12 to submit that notice?

Is this notice valid even if we had a verbal agreement to stay at the property for the first 24 months?

What would happen in case I cannot leave the property on due date? Due to personal issues I might need to stay for 2 more months.

Many thanks,

Gabriel.

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