Tenancy Agreement Break Clauses

What are break clauses in Tenancy Agreements?

A break clause is a clause in a tenancy agreement that provides both tenant and landlord the opportunity to terminate the tenancy agreement early during the fixed-term (e.g. a 12 month contract gets terminated after 6 months). Essentially, either party can “break” the tenancy before the fixed 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, no earlier!

Here is an example of a break clause (please do NOT use it without seeking legal advice):

7.9 Tenancy Break Clause
7.9.1 In the event that the Tenant shall desire to terminate the tenancy hereby created at or at any time after the end of the first six months thereof he shall give the Landlord not less than one months previous notice in writing of such desire and shall up to the time of such determination pay the rent and observe and perform the agreements and obligations on the tenants part.

7.9.2 If the Landlord shall desire to terminate the tenancy hereby created at or at any time after the end of the first six months thereof he shall give the Tenant not less than two months previous notice in writing of such desire then immediately upon the expiration of such notice the tenancy hereby created shall cease and be void.

Serving notice to break the tenancy

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 by 1st May (i.e. tenant should have received notice by then), which means the tenant should vacate on July 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, known as a tenancy surrender notice. It’s also worth noting that if the tenancy wishes to end the tenancy on or after the fixed term, they only need to provide one months’ notice- that is their statutory right.

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, changes financial circumstances, or even because the relationship between the tenant and landlord turned sour.

The reason I don’t use break clauses

I personally 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 the landlord is relying on the break clause by serving their tenant with a notice- if the tenant refuses to vacate and remains in the property, the landlord will need to issue court proceedings so they can get a order possession from the Judge. 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.

Why wouldn’t the clause be valid? 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 enforceable.

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. But ultimately, every clause in a tenancy agreement needs to be deemed as “fair”

The preferred alternative to a break clause

Personally, I’d rather just issue my tenant with a 6 month tenancy agreement (that’s the minimum term allowed). That way, if the tenant or landlord wishes to end the tenancy, they can do without relying on a break clause. But also, and perhaps more crucially, if the tenant refuses to vacate after a valid possession notice (Section 21) is served by the landlord, the Judge should grant possession immediately, no questions ask, because the tenancy’s fixed term would have.

In the event that after the 6 months 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.

Mutually terminating the tenancy early

If at any point during the fixed term both landlord and tenant agree to mutually terminate the tenancy (for whatever reason), whether there’s a break clause or not, the normal procedure is for the tenant to vacate all his/her possessions and hand back the keys.

In the event that the tenant wants to surrender the tenancy without the landlords agreement, the tenant will be contractually obliged to pay rent for the entire length of the fixed term. Similarly, if the landlord wants the tenant to vacate early while the tenant has no interest, the landlord cannot reposes the property early without grounds for eviction.

Here’s a blog post which covers many of the legal methods of terminating a tenancy.

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?

169 Comments- Join The Conversation...

Showing 119 - 169 comments (out of 169)
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Jeet 13th May, 2017 @ 22:50

Hi

My tenancy started on 1st of July 2016 and ends on 30th June 2017.

Below is the break clause in my agreement

''It has been agreed by all Parties to this Agreement that after the expiration of 6 months from the date hereof either party
may serve upon the other 1 months notice in writing from a rent due date to terminate this agreement.''

I have sent out a notice for one month to the landlord to vacate the flat on 11th May saying I will vacate on 10th June (i.e one months)

Will I be in any problem ?

If yes how should I handle it ,the agent has all my deposit.

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David 14th May, 2017 @ 05:12

@Jeet

The only problem I can envisage is

"from a rent due date"

If they want to be strict they can say that you should have given notice on the 1st of the month if that is when rent is due. However, under OFT356 guidance clauses need to be equal so I would need to see what it says the Landlord has to do to give notice.

It is a clause designed to extend the notice by up to a month. So to comply you should have given notice on May 1st 2017, but they might not hold you to it. You should have received an email back from the agent confirming acceptance that you will be leaving.

You say your deposit is with the agent, but it should be protected with one of the three deposit holding organisations (DPS, TDS or MyDeposits), you should have received a letter and SMS WITHIN 30 days, from the Deposit Company telling you where the deposit is protected and the reference number. Otherwise the Landlord can be sanctioned for up to 3x the deposit.

Agents often use TDS as the deposit company, but it could be any of them, the deposit needs to be protected until you leave.

At the same time you can expect that there will be a final inspection and inventory of the property before you leave. It is in your interest to video every part of the property to show what an excellent condition you left it in.

This is especially true of anything that may be considered damage, hopefully you took a video of it when you moved in.

If there is any damage the Landlord or their Agent can seek a deduction from your deposit, you can dispute this and the Deposit Company can be the arbiter in such cases OR you can take them to Court (or them you). It is important to note that for some of these you agree to their decision being final, so do not agree if you do not feel you will get a good hearing.

For example if there was a leak in the plumbing that damaged a carpet in month 1 of a tenancy, but the Landlord tries to say you are responsible for the damage to the carpet, you would dispute that. At the same time if you had a party and spilled some wine on the carpet you would be expected to pay for it to be professionally cleaned.

It is always in your interest to leave the property in a better condition than you found it, but you are not liable for redecoration unless you have made it worse than "fair wear and tear".

I hope this helps.

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Amy 7th June, 2017 @ 16:13

@David

you seem to have a real handle on this, so I was wondering if I could ask your advice.

I am a tenant, we have an AST, which has the following break clause:

"This Tenancy Agreement is subject to two months written notice to be served by Landlord is requires possession of the property or Tenant received on or before the rent due date, not before the first ten months (i.e. 12th May 2017) in order to terminate the agreement."

We sent our notice letter on 1st June, which was received on 2nd June. In our notice we offered 5th August as our termination date (i.e. over 2 months' notice).

The letting agent is now saying that the notice letter is only valid from the rent due date and therefore our termination date would be 11th August.

Even though in an earlier email they accepted our "2 months' notice of 2nd June".

What do we do?

My other half is having to move back to Belfast, and the main bone of contention is that we have asked to have an early check out (in effect pay the 2 months rent but check out after 1 month), which they agreed to.

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David 7th June, 2017 @ 22:13

@Amy

As I read that you have either only quoted the obligation of the Landlord to give you notice or there is a typo where it says "to be served by Landlord is requires possession".

Can you please check it is verbatim?

It looks really badly constructed because it is ambiguous, when a legal term in ambiguous it can be interpreted in different ways.

First off, it is not a break clause, if this is a 12 month contract and you can't give notice before 10 months then they are just asking for 2 months notice but the contract will end at the end of 12 months anyway. So check the TERM.

It is not enforceable to require you to give 2 months notice on a contract that will end anyway. It will end if it is not renewed, even if you stay in the property and do not renew the contract ends and a new statutory periodic tenancy is created, the notice for which is 1 month under common law (The Housing Act).

Now let me carry on in case it was a 2 year contract.

They should have said either party may terminate this agreement after 10 months from commencement by giving 2 months clear notice on a rent anniversary date.

If it is saying that the Landlord can give you notice at any time but you have to give it on a specific date, that is not valid as it is not equal.

Now let's look at the ambiguity:

"This Tenancy Agreement is subject to two months written notice to be served by Landlord is requires possession of the property or Tenant received on or before the rent due date, not before the first ten months (i.e. 12th May 2017) in order to terminate the agreement."

ANY day is before a rent due date, for the following month, so if your rent was due on 12 May and you gave notice on 2nd June 2017, then you are meeting the contract term, the 2nd June is before a rent due date and it is after the first ten months.

Under OFT356 and unfair contract terms legislation, any right afforded to the Landlord has to be equally available to the tenant.

So if the Landlord is allowed to give you 2 months notice then you are entitled to give them 2 months notice.

Note when it says " on or before the rent due date, not before the first ten months (i.e. 12th May 2017)

If there is no stipulation anywhere in your contract that the notice has to be given on a specific date or anniversary (for Landlord or Tenant) then as long as the notice is given after 12th May then that will suffice.

If there is a different (more onerous) stipulation for tenant than landlord, it is void as they need to be equal.

BTW you can just break the contract with one month and they can only charge you for their actual void costs, they have to mitigate those costs (get a tenant ASAP).

I would make an effort to speak to the Landlord directly, say you were trying to be fair, but this agent is taking the piss so you have a mind to just leave, not let them have any more rent and let them have the deposit and pay any actual costs they incurred after mitigating their costs.

Say that you need to leave, you want an early checkout day and they are free to rent it from that date and you are OK with tenants being shown around immediately. Deal with the boss, agents are just useless pieces of turd on your shoe and they smell as bad too. They are clearly trying to get double money, may not have even told the landlord.

While you are at it, you might want to make sure your deposit was protected at either the DPS, TDS or MyDeposits, WITHIN 30 DAYS, that you were also given the Prescribed Information WITHIN 30 DAYS, also an energy performance certificate, the Governments how to rent booklet and a Gas Safety Certificate. If the first two did not get done in 30 days you may be entitled to between 1x and 3x the deposit as a sanction against the Landlord. The latter obligations only prevent them evicting you but you can still report them to the local council housing dept. Gas Safety is particularly frowned upon and in some areas they could be banned.

If there is no term in the tenancy agreement that says you have to give it on a certain date and that the landlord also has to give it on a certain date you simply write to the agent with a copy sent to the Landlord (it is the law that their name and address are in your tenancy agreement).

Something along the lines of

Dear Mr Plonker

I am writing to your recent assertion that we have to give you notice on a specific date, I have checked our tenancy agreement, we have taken advice and we have met the terms of the agreement, we gave you notice before a rent due date and after 10 months of occupancy.

Optional if it is a 12 month contract

[furthermore, we have a 12 month contract which will expire on July 12th 2017 anyway, regardless of whether we give you notice or not. So we are actually doing you a favour, now please stop messing us around and confirm the early exit inventory and checkout. You are free to show tenants will immediate effect but with at least 24 hours notice and subject to a time being mutually convenien.

We have taken a video of the flat which is in the same or better condition than when we rented it, we will want a signature to that effect.

Your sincerely

Amy and hubby tenant

can find no trace of such a term, merely that it has to be given on a rent anniversary

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Amy 8th June, 2017 @ 08:35

@David

Thank you so much for coming back to me, apologies I missed key information in the last post.

Please allow me to clear up some points:

Term: 24 months, with a 12 month break clause, 2 months' notice

Break Clause: You are correct that was a typo on my part and should be "if requires", the rest is verbatim from the contract. This is the only mention of a break clause in the whole contract and the exact terms that the letting agent has tried to use against us a total of 3 times now.

Deposit: This was not protected within the 30 days and we have not received any information. We chased twice and I believe it was protected 45 days after we moved in, 52 days after we paid it, but I have no information regarding the actual number and searches on deposit scheme websites is coming up inconclusive.

New information: We have not fully agreed the check out date, we have asked for the 8th July repeatedly and they are insisting on 2nd July, they have also advertised the property as available from 5th July.

Am I within my rights to say no to them letting it out while we are still paying rent, i.e. to 5th August?

Also, would it be reasonable to suggest we come to a mutual agreement to early surrender of the property which they could then rent out as soon as they wanted?

I am so confused with all of this and with everything else going on, I genuinely feel conned.

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David 8th June, 2017 @ 12:27

Hi @Amy

Still a badly constructed term but here it is as I understand you are saying it:

"This Tenancy Agreement is subject to two months written notice to be served by Landlord if requires possession of the property or Tenant received on or before the rent due date, not before the first ten months (i.e. 12th May 2017) in order to terminate the agreement."

My suggestions before still apply, the terms of the agreement have been met, the term does not stipulate a specific day, it simply says "on or before a rent due date", every day is before the next rent due date. The other term has been met.

The failure to protect the deposit puts you in a VERY strong position, you can take the Landlord to Court any time in the next 3 to 6 years for failure to protect your deposit.

You need to get rid of this agent and contact the Landlord directly as specified above except that you now are in a much stronger position because of the agent's failure to protect the deposit in the specified time.

the 52 days is what matters, you can check online with each of the three deposit companies, you will need the following tenancy information:

Deposit Amount:
Tenancy Postcode:
Tenant Surname:
Tenancy Start Date:

http://bit.ly/chkdep1 for TDS, scroll down, click "search by using tenancy agreement Information"

http://bit.ly/chkdep2 for DPS

http://bit.ly/chkdep3 for MyDeposits

Now if you do not find it on any it is worth a phone call to each in case the name was spelt wrongly, I know some unscrupulous agents and Landlords have protected the deposit in a variation of the tenants name and used their own sim and email. One was exposed in court and got max fine but all costs.

You could ring the agent for the reference number but speak to the organ grinder (Landlord) not the monkey!

Now you need to decide what you actually WANT?

You can ENJOY the property right up to the end of your tenancy, so currently that is looking like July 12th 2017 as long as you pay your rent to this date.

As there is a dispute with the agent about notice you can withhold rent to put yourself in a stronger position.

You do not even have to let them carry out viewings, you can change locks, reject every offered date as not being convenient, tell them you are vacating on July 12th 2017 and will agree to inspection on 11th July or even 12th or 13th.

As I said, decide what you WANT, you are in strongest position because you can instigate a claim for 3x the deposit, they can claim mitigation but likely will settle at 1.5x to 2x deposit because it will save them on legal fees. They did not protect it in time and they have never given you the details so you are likely to get at least 2x the deposit as sanction plus your costs if they do not settle. If it were me I would go for the 2x as a minimum because agent is being a PIA.

You do not have to accept a low ball offer, the agent broke the law but the Landlord is 100% liable, he can then sue agent depending on type of service he has, if full service or if specified agent would protect, they sue for negligence. I have "persuaded" agents to cough up the dough with a simple solicitors letter threating legal action, needless to say the agent was then fired.

Decide what you want, you are entitled to quiet enjoyment of the property till Aug 2nd, they can only come in for urgent gas safety, with 24 hours notice and you can decline them and anyone who cannot prove they are Gas Safe engineer.

Reject term as above, but do it to the Landlord using example letter below modified as you see fit

Decide what you want, leave date, inspection date, whether you want to keep paying rent or hold it as a lien on money owed.

Decide how nice you are going to be and whether you are going to let them do inspections.

Example letter is below, I have used your previously specified notice date which is valid and correct. To be honest they are not in a position to argue this now.

I would expect them to come back with an excuse and offer to settle at a low ball amount, offer of a positive reference and you providing access for viewings.

You only have to agree to what you feel comfortable with, e.g. viewings on Wednesday evenings between 7pm and 9pm from July 2nd onwards and on Sundays between 3pm and 7pm, EACH and EVERY appointment to be agreed by you at least 48 hours in advance with NO EXCEPTIONS and only one person at a time to be shown around and you must always be present. The latter is to stop thieves.

You can be firm and go for the 3x deposit as it WILL save them legal fees, you are almost assured of 2x deposit because there has been a double failure and the Court will be annoyed if you offered to settle and they did not take it, thus wasting Courts time.

They have some mitigation in that it was agent but no defence, they would have to be first time rented property out to claim best result (1x deposit) so they will be mad to decline 2x deposit, but asking for 3x makes them work for it and people only appreciate what they work to achieve.

========

Dear Mr Landlord

As you may be aware I am currently in dispute with your Agent Plonker Properties Ltd, the issue is over their/your assertion that we have to give you notice on a specific date, I have checked our tenancy agreement; we have taken advice and we have met the terms of the agreement, we gave you notice before a rent due date and after 10 months of occupancy.

Our 2 months notice was given on 2nd June 2017, which is before rent due date and after May 12th, so it is valid and we will be giving up the property August 2nd 2017. [However, we are open to discussing the possibility of an early surrender around July for a credit on the rent.]

In the first instance, I must ask you to write to me to confirm your acceptance of our notice, otherwise I will be forced to consider us IN DISPUTE and withhold any further rent until the matter has been decided by the County Court.

Mr Landlord, I must also inform you that I have discovered that you were obliged to protect my deposit in an approved scheme within 30 days of taking said deposit and also within 30 days to have issued us with the legally prescribed information (PI). To date you and your Agent has failed to provide us with the PI or even a deposit reference, I have made exhaustive search of the 3 deposit protection sites and can find no record of a deposit.

As a result of this, as my Landlord YOU are liable for a Sanction of 3x the deposit under provisions of the Housing Act and The Housing (Tenancy Deposits) (Prescribed Information) Order 2007. The Sanction is payable to me, you may pay me the sum of 3x the deposit within 14 days as settlement thus avoiding legal and Court costs or I will be forced to take legal action to claim it, please consider this a LETTER BEFORE ACTION, if we do not agree settlement within 21 days of the date of this letter, Court action may be started without further notice.

To be honest I had hoped we could end our tenancy on a more amicable basis but I am fed up with being messed around.

I look forward to hearing from you at your earliest convenience and no later than 7 days from the date of this letter.

Your sincerely

Amy and hubby tenant

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Amy 8th June, 2017 @ 13:06

@David

Thank you so much for your detailed response. I feel so much better now.

We have sent a letter to the landlord and copied in the letting agent. However, we are still being hounded to accommodate viewings, with as little as 2 hours notice. I have said no and refer them back to the letter.

Hopefully this matter will get resolved soon. I hate feeling so anxious about it all.

Many thanks

Amy

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David 8th June, 2017 @ 13:21

@Amy

Do NOT deal with the agent, except to tell them that you will no longer be accepting requests for viewings until your dispute has been resolved and until they are mutually agreeable.

For £5 on ebay you can but a new cylinder for your lock, it is a ten minute job to swap them out (put them back when you leave).

There is absolutely no need for anxiety, you just have to take control.

I hope your letter was along the lines of what I wrote above, you need to play hardball, it is the only way they will respect you.

You have seen what happens when you are nice, they treat you as a doormat.

It does not matter what BS they say, under common law you are entitled to "quiet enjoyment of the property" for the duration of your tenancy. Having people in and out is not quiet enjoyment, it does not matter what terms they put in their contract, they cannot override common law. This right goes back through the ages and is backed by case law.

Besides you are in such a strong position, they would be nuts to upset you.

Do let us know what they say and we can tell you what to agree or not to agree to.

Your Landlord may be nice or they may be nasty, the agent sounds incompetent and just trying to secure their business with the Landlord by finding another tenant ASAP. If I were the Landlord I would kick them to the kerb, but I say that about all agents. Truth is they are finished, business model is changing, get with it or get out of it.

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Amy 28th June, 2017 @ 14:02

@David

Hi David, hope you are well. We sent the Letter Before Action as you suggested, and instead of a formal response, we have had an email from the letting agent saying:

"I spoke to landlord he apologies for this delay due to health parents issues and being very new landlord first time he register deposit prevent him to him as quickly as he would have like to do" - verbatim.

What are my options now?

Thanks,

Amy

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Amy 28th June, 2017 @ 14:36

@David

The landlord is also refusing to accept our letters sent by recorded delivery and through the letting agent insisted that we deal with him instead.

They have also re-advertised the property as available 9th July instead of 6th August and I am feeling completely conned.

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David 28th June, 2017 @ 21:34

@Amy

They have tried to give some excuse but your agent has admitted that the Landlord is culpable, that is great.

I did say not to contact them, I suspect they told the Landlord not to sign or he saw your name on the back.

I personally would never want to deal with an agent who had tried to stitch me up, so I would write to the Landlord again, this time you do not send it recorded delivery, but you get a "certificate of posting" from the post office. Send it twice from two different post offices, one in a white a4 envelope with no writing suggesting who it is from and one in a brown a4 envelope again with no clues on outside.

Your position now is to give the Landlord one more chance to deal with you, I can help you with the papers if you want to file this yourself or refer you to a solicitor who specialises in this area of Law. You will see from my previous posts to Landlord and Tenant alike that the best way to resolve this matter is to settle, but if they will not engage with you then you have to be prepared to see it through, you will get back any Court fees and I can tell you how to file it so that you get your legal fees back too. There is no defence a Judge MUST award between 1x and 3x the deposit plus the return of the deposit, considering that you have attempted to settle and that they are not engaging you then a Judge will most likely award you 2x to 3x the deposit because not only have they not protected the deposit within 30 days of taking your money but to date they have failed to fulfil the other obligations including the Prescribed Information.

So for now, You send the same letter as before with a covering letter saying

===============

"Dear Mr Landlord

I am very disappointed that you have refused to sign for my previous letter sent by recorded delivery, so I have enclosed my previous LETTER BEFORE ACTION again. A copy of this letter was sent to your agent but neither they nor you have addressed the matters therein.

I do not want to deal with your lettings agent because I feel that there may be a conflict of interest.

I had hoped to settle this matter amicably but your refusal to sign for my previous letter and your agent's refusal to properly manage our departure leave me no choice but to give you final notice of my intended legal action.

Your agent has admitted your culpability in this matter, which is indisputable anyway because the deposit was not protected in accordance with the Housing Act 2004 and even now I have NOT been provided with the Prescribed Information in accordance with the The Housing (Tenancy Deposits) (Prescribed Information) Order 2007.

You have clearly had my letter as your agent has replied briefly to admit your liability.

This matter will not go away and I am advised that I can bring a claim for up to 6 years, I strongly suggest you seek LEGAL advice from a solicitor. If you had expected or hoped your agent was liable under your service contract with them then that is also a matter you may want to discuss with a solicitor but it does not negate from your legal liability in this matter under the above legislation.

I am happy to deal with your solicitor if you would rather not deal with me directly, but I must ask that you or your solicitor contact me before Monday 3rd of July 2017 or I will be filing my claim against you in the County Court without further notice. My telephone number is 079 0000 0000

As you have previously refused to sign for letters, I must advise you that if you ignore the Court papers a judgement will be obtained with or without your presence and it will be enforced for the due amount including Court and legal costs.

I have noticed that your agent has changed the availability of the flat in advertisements to July 9th 2017, I have previously advised you and the agent that the property will NOT be available until August 6th 2017.

I must inform you as I have your agent that because of this unprofessional and unacceptable behaviour, I will no longer be accepting requests for viewings until your dispute has been resolved and until they are mutually agreeable.

Once you or your solicitor has engaged me regarding our dispute, we will consider accepting viewings only under the following conditions:

1. At least 72 hours notice must be given in all instances

2. Viewings will need to be arranged for Wednesday evenings between 7pm and 9pm or Sundays between 3pm and 5pm, all viewings must be booked with 72 hours notice.

3. At the time of booking we require the full names of any people who will be entering our home.

4. Only one person may view the property at a time, they must be accompanied by the agent and it is the agent that must ring our bell, we will not deal with some stranger in our home.

5. No single viewing may take longer than 10 minutes, your agent is able to carry on any discussion outside.

I must advise you that we have now made a temporary change of the locks due to the behaviour of your agent as we reserve our right to quiet enjoyment of the property for the duration of our tenancy.

I look forward to hearing from you presently.

Your sincerely.

Amy and hubby tenant

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Caryn 26th July, 2017 @ 18:53

Hi,

We have a AST agreement that started on 17 Feb 2017 and is for a 12 month fixed term, with no mention of a break clause. I heard that by law, you are able to break your AST agreement after 6 months, even if not stated in the agreement - is this correct?

Our contract states the following:

Strictly by the Landlord's or his Agent's prior consent and subject to certain conditions that may include the Landlord's reasonable costs associated with the re-letting of the Property, the Tenant may be allowed to surrender the Tenancy Agreement before it could otherwise lawfully be ended.

One of the main reasons for wanting to leave the property is maintenance has not been carried out since we moved in, even though it was agreed upon by the Landlord. We have sent numerous emails and had meetings with the Agent, but still certain things have not been done.

Could this issues help us end our Tenancy Agreement early? We have been told we can end it, but will be responsible for the rent until a new tenant moves in, plus approx. £650 in fees. The property is not in the same state it was in when we signed the lease (cupboards have been removed and not replaced by Landlord) and the front porch door is rotten and the lock has been removed - it was agreed that this door would be replaced before we moved in, and 5 months later nothing has been done.

Any advice would be greatly appreciated.

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David 26th July, 2017 @ 19:46

Hi Caryn

No the MINIMUM term is 6 months but if there is no break clause then the 12 months stands UNLESS there is a breach of contract.

I am sure your contract has Landlord's obligations listed regarding maintenance. If S/he is in breach of these then they may give you grounds to sue Landlord for consequential loss, of course you will not do it but, it is part of negotiation.

Not only do you have an option in contract for only "reasonable" charges but Office of Fair Trading guidance says they can only charge you for their actual costs. Now an agent will hike this up because they see it as a moneygrab opportunity being the leeches they are.

I would approach Landlord directly and say you want out or you will sue them for breach of contract, for now report their failure to your local council housing dept. If they are a repeat offender they may get banned.

The simplest way to resolve this is to get tenants from Gumtree, check them yourself and say to Landlord that you have someone prepared to take over the tenancy or sign a new one.

Something else that may give you leverage is if your Landlord or his agent failed to protect the deposit and inform you in the prescribed way, within 30 days of taking your deposit.

It had to be protected with one of the three authorised deposit protection companies, these links will take you to each

http://bit.ly/chkdep1

http://bit.ly/chkdep2

http://bit.ly/chkdep2

You just put the deposit amount and date the tenancy started along with postcode

If they did not protect it then you have huge leverage as they can be fined 3x the deposit plus be forced to give you deposit back.

If it is protected and they will not co-operate report back here.

I really would not suggest that you sublet it without the Landlord's permission. Always best to come to an amicable solution.

If they did try to take your deposit you could raise a dispute with deposit company that charges are not reasonable.

The lesson here is NOT to sign anything you are not prepared to live with no matter what. I appreciate that you expected maintenance to be carried out but you can bring a case in small claims Court for your actual consequential losses.

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Sasha 29th July, 2017 @ 21:41

Hi,

I wish I'd come across this website earlier in my tenancy, my problem is very similar to Caryn.

we've started our tenancy on the 18th of January, that's when we signed the contracts anyway, didn't receive the keys until 2 days later and that's with us pushing them, works we're not completed before our move date, even though landlord had 8 weeks to do so from the date we reserved the property which by the way was advertised on rightmove as "available now".

The first 3 months were constant calls and emails with the agency as apparently the landlord spent £20000 refurbishing the property which from our viewings only needed walls painted and carpet changing, there was some plastering involved still don't believe it would've added to the much.

We'd been promised an inventory on moving date which was not provided, however with past experience, first thing I did when we walked in was to check if appliances we're working, and Only 2 out of 5 were, amongst other issues, seem that they couldn't include actual important things in this very lengthy and costly refurbishment!

It took them 6 weeks to get a shower replaced as the electric shower wasn't working when we moved to the property even though I had asked them for that on the viewing as I knew it wouldn't have costed a lot and builders were going to be around anyway, some appliances have been removed after start of tenancy and hot replaced, not even space left for us to replace it ourselves as the hob fitting did not comply to health and safety, let me point out that this was only mentioned to us after contacting them time and time again to have it replaced due to it not being working properly, again we had our only appliance to replace it with, just needed it to be fitted by professionals. the list of problems is endless, but we'd been nothing more than understandable and tried to liaise with both the landlord and agency, at this point I'm not sure who's being more honest as both seem to have different solutions.

Whilst trying to sort the issue with the cooker I was called to their offices for a meeting at which point I was told by the agents that the "landlord is sick of all the issues you can move out if you're not happy" I've recorded the conversation, because I was already used to a different BS every time we verbally communicated. I told them that the only issues in the property were the fact that they did not made sure that the appliances were all in good working and safe order before we moved in (they had 8 weeks to do so) and it was taking them too long to sort, (I'm not talking about toasters here), before that we were even told that if we kept complaining too much, the landlord was going to increase the rent by a very high price, and that's exactly what's happened...

We've not been informed officially yet, my housemate bumped into one of the agents and he told her that he was going to call her, as the landlord is proposing to increase the rent by £400 that's a 30% increase, (or we can move out) because they can't afford their mortgage and they did not plan for the "extra work" after we moved. They plan to enforce it from the 1st of October, as per "break clause on the contract. (I'm sure the reasons won't be included in the letter)

1- I understand the landlord can increase rent at beginning of new term, what's the legal or per contract term "reasonable"?

2- Our contract was signed on the 18/01, how can they enforce it on the 1st.

3- Most importantly, there's no break clause, I've gone trough the contract over and over again, this is the closest I came to a break clause;

BREAK CLAUSE CONDITIONS PLEASE NOTE: (AGENCY NAME) will NOT accept a TWO MONTH NOTICE- AFTER THE BREAK CLAUSE DATE. tenants whom wish to serve a TWO MONTHS notice with intentions to vacate later than the break clause point will be liable to i) an early termination fee of the following;... ii) liable to continue paying rent Until a) substitute tenant is found, either by the -tenant in site - themselves and/or agency subject to references...

Let me point out that we've been trying very hard to liaise with the agency as it's convenient property for our current situation and it would be very inconvenient to move, besides if there is such a clause it would be even more inconvenient to move out on the "legal "due date of 17/1 as we will be overseas.

After all the issues were sorted we never disturbed them again and it's been almost 3 months ago, having said that we've not been given written notice yet, so I'm 99% sure it's not yet valid.

Amongst other things I feel like either this agency or the landlord is bullying us, as we've never asked for concessions if anything we've been the ones doing all the sacrifices, however we cannot be worrying about what the next sacrifice will be as they seem to keep making rules of their own that does not really comply with the law.

Having read their reviews after we moved, they've been fined by the council twice in the past so it might help.

I'm also very worried about our deposit, I can see them trying to get it from every single thing as it was clear after, that a lot of things were not done properly by the builders and it's starting to show, of course we cannot report it as we may be "threaten" with "move out if you're not happy".

I don't have a problem standing up to them and fighting, however, this will mean that at the end of the 12 month term we'll most likely be served with a notice which will not be very good for the other housemates, plus we did not plan on being here for 1 year only considering the extorting fees we paid.

I'm sorry it's very long, and please don't think it's luxury accommodation because of the amount "spent" on the refurbishment, it's simply a good size old property were we can all just about squeeze in, okay location.

Thank you for your help in in advance

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David 30th July, 2017 @ 04:45

@Sasha

It looks like they have deleted part of the contract that had a break clause but left in a separate term that referred to it.

Look where it says what the TERM is, there may be conditions there, for example it may say that the agreement runs until 11.1.2018 unless terminated after the minimum term (6 months) in writing on 11.7.2017 and in such cases at least 2 month’s notice must be given on or before 11.05.2017. (this is just an example, they may not include actual dates, the minimum is 6 months but they may have any number of months above 6).

To be honest your Agents sound like a shoddy outfit, they are probably disorganised so why chase them, wait for them to do whatever, let them make mistakes and miss key dates.

Just to clarify, you have an Assured Shorthold Tenancy but you are just 1 or 2 of a number of tenants? Are you lead tenant?

Can you confirm that you all have one agreement and are tenants within that agreement and that the agreement is an Assured Shorthold Tenancy?

The first thing to be aware of is that you can't be evicted UNDER ANY CIRCUMSTANCES without 2 months written notice on the proper forms and certainly not while you are abroad. If the AST ends and you remain in the property a new Statutory Periodic Agreement (SPT) is created by law, it has the same terms as previous except that the landlord may issue section 21 giving 2 months’ notice thereafter, however, there are lots of prerequisites to being able to issue such a notice.

You should check the deposit was protected within 30 days and that you (assuming you were lead tenant) were advised of where it is protected.

You can check here

http://bit.ly/chkdep1
http://bit.ly/chkdep2
http://bit.ly/chkdep3

Just leave surname blank and get the dates, amount and postcode right

They can't take money from deposit without agreement and whichever of three companies above has the deposit, there is a procedure for disputing deductions.

Rent cannot be increased verbally; a written notice must be given.

Rent can only be increased within the fixed term if the terms allow for it and even then under certain conditions.

If you stay in the property and sign a new agreement that has an increase in rent then you are agreeing to the increased rent. It can't be increased in October unless the agreements says so and even then the terms of the agreement need to be legal and should follow guidance or may be deemed an unfair contract term.

If you stay in property in January 2018 and an SPT is created you can refer any increase thereafter for a rent review, the details of which along with other relevant information is listed here:

https://england.shelter.org.uk/housing_advice/private_renting/rent_increases

It is a pain in the Armpit getting new tenants and I suspect that if things have settled down they do not want to get new ones. However, the agent may want to sign a new agreement because they can get a fee for creating it.

It sounds to me like you would prefer to remain and under an SPT, which means you just remain in property. When a change is proposed discuss it with the Landlord directly, their details should be on tenancy agreement and can be requested at any time if a proxy address is used. A £3 search at Land Registry will confirm owner of property and may list their address.

It sounds like there is a set date in the contract when a break may be issued and only on that date, remember one thing, any term has to be equal. So if they say you can't break until 9 months into the contract and only then if you give notice at 7 months in, then their terms must be the same.

If such a term existed they can't use it as a gun to your head to increase the rent.

To be clear in a fixed term contract the rent cannot be increased unless it says it can be increased and even if it did there are limitations or they risk being an unfair contract term.

If they had a break clause for October and even if they exercised it, they would need to issue a S21 on 18th Aug 2017 or before. This is why I am saying do not contact agent as it may remind them, having said that there are probably prerequisites they have missed.

If no S21 notice was given you would just remain in the property and an SPT would be created thus SPT law would apply and a rent review would be an option.

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Sasha 30th July, 2017 @ 06:48

Thanks @David

To answer your questions, yes it's an AST "for the term of 12 months", there's 3 of us, I'm the lead tenant.

I've told my friend to ignore them as it's their duty to put it in writing to us, and it must be done on the correct dates (even if such a break existed) or they'll miss it.

She was so worried of being given notice to vacate the property so she contacted them on the same date and asked for it to be in written! (I'm fuming about that)

And yes I know most sensible and good landlords are aware of the time it takes to find and get new tenants, but I don't think this people realise that, they are under the impression they will find "better" tenants, to be honest I have a feeling of bad Karma to them when we leave the property, because there are a lot of issues we are overlooking.

We were given a deposit protection certificate

Bellow are the special conditions in the contract, again there is no break clause date or even mentioned.

"SPECIAL CONDITIONS

PLEASE NOTE: It is agreed that the tenant will give no less than 2 months in writing to the landlord/agent of his intention to renew the or terminate the tenancy at the expiry date. Please notice must be served on exactly the same date as the commencement date i.e start date 15th of june notice must be served on 15th of whichever month the 2 month notice is served on.

If the tenant leaves without giving 2 months notice to the agent or landlord then tenants loose their deposit.

The inventory has been carried out and agreed by both the tenant and agent/landlord. If the property is not given to the standards of the aforementioned signed inventory the agent is within it's rights to make the relevant deductions.

It is agreed that the landlord or agent will give no less than two months complete rental months notice as per housing act 1988 (amend 1996) in writing to the tenant of his intention to renew or terminate at the expiry date.

Tenancy agreement must be renewed 2 months prior to the end of the tenancy. It's tenant's responsibility to renew the contract on time. Please pay the renewal fees as per tariff charges.

Should the tenant extend their tenancy beyond their initial term, it is agreed that the rent will be subject to a reasonable increase on annual basis."

In my past rentals, I would receive a letter form the agencies exactly 2 months before renewal.

Also he told my housemate that "it's the law in England, every house contract has a 6 month break clause."

I told her that's not true, in my previous rental I was only given a break clause after 3 years in the property.

But I'm really annoyed now, as I'm afraid her lack of knowledge with regards to the law will spoil things for the rest of us, having said that, although we would like to remain in the property, I don't want to constantly be "harassed" by the agents.

And the one time I contacted the landlord directly as per his own advise "if the agents don't find a solution give me a call", he just forwarded the message to them and never replied to us, so now I feel he's no different than them.

We would agree to a reasonable rent increase on beginning of new term which from my understanding will be 18/01/18. And that's what I'm planning on replying to them when we receive the letter.

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David 30th July, 2017 @ 08:57

@Sasha

I can understand how you feel, there is a lot of bullshit going on here.

Listen, just because some Landlord or in this case a stupid agent writes some nonsense in a tenancy agreement, it does not mean it is legal. Generally speaking there is the Law, case law and Guidance.

For Judges when in doubt they tend to rely on Guidance, this used to be produced by the Office of Fair Trading but has been devolved to local Trading Standards. The last guidance was the one below, it is from 2006 and Judges use it, especially on unfair contract terms. You can download it here:

http://bit.ly/oftguide

I have seen Landlords face a £20k legal bill because of a long running battle over the terms. They had a rude awakening when the Judge declared their terms unfair contract terms.

For a start any term that conflicts with common law is automatically void, for example if an agreement said you have to give 3 months notice if the tenancy became a SPT it would be void because law on SPT's means you have to give 1 month and landlord 2 month's notice.

To take anything from the deposit the DPS, TDS or MyDeposits would have to approve it, but even for them ONLY if you agree to them doing arbitration, you can insist it is decided by a Court which means Landlord may be exposed to legal fees. You are not liable for wear and tear or decoration.

All of this shit because an Agent writes some dumb contract.

A few years ago I had an agent say that the tenant had to pay for his lost profits! Can you imagine! As it was they did not protect deposit or serve the prescribed information. I worked with Landlord who was a very intimidating individual and that agent repaid deposit and 2x sanctions out of their own pocket because the Landlord made it very clear via his own solicitor that he was holding agent liable for all consequential loss as a result of their negligence.

It seems to me that you would be better off developing a relationship with the Landlord directly in a few months time. Let them know of reviews and say that you wish to stay in property under SPT but they should fire agent who is a bully.

As for inventory, there is a thing called wear and tear, deductions cannot be made for that, in fact the agent can't deduct anything, it is the Landlord who can PROPOSE deductions but they have to be approved by the deposit holder or Court if you choose.

You do NOT have to renew or extend, you can go SPT, it is cheaper for Landlord and you because the money grabbing agent does not get to charge you both for the privilege.

It seems to be that the agent is the antagonist here and you should let the Landlord know that.

It is complete bullshit that "it's the law in England, every house contract has a 6 month break clause." All tenancies must have a MINIMUM term of six months. If you sign an agreement for 3 years and there is no break clause you have security for 3 years. You can both agree to break the agreement at any time, the guidance says Landlord can only charge you for ACTUAL costs.

Same applies to late rent, you see these "scare" terms that say a penalty of £25 a day will be due for every day late, the reality is that they are entitled to charge a loss of interest of around 20p! Now if their mortgage company charged them for missing a payment as a result of non payment they could pass that on, but it is all subject to a Judge deciding if it fair.

The most important thing is that you DO NOT PAY any rent increase, if you pay it you are deemed to have accepted it and the Rent Tribunal may decline to intervene.

Rents have to be at market rates, that is subjective but you can use the LHA rate for your area, it is set at the 30th percentile of rents in your area.

Your flatmate clearly has some anxiety issues. The reality is that in this country you do not have security except in that first 6 months.

You need to SPEAK to the landlord not email them, if you do not have their number email them from a new email address you create online and ask them for their phone number as you need to discuss something of importance to them.

They are probably paying between 10% and maybe even 20% for this agent, plus any fees they make up. So if you can persuade them that as lead tenant you will take responsibility for organising repairs etc then they may be open to that. A friend of mine had an agent, they live in Malaysia, the tenants had a list of stuff not done, the agent flew back to London, fired the agent and the lead tenant gets everything done. They had one of 4 tenants leave and interviewed replacement themselves, dealt with deposit and made sure all was done legally. He loves that tenant, he sees the value and rent has not been increased for 3 years, he has no plans to increase it either. They even video the property and put them on YouTube for him to see.

I think that most letting agents are going to go out of business, we are already seeing much of what they do being replaced by online agents. They are so incompetent generally, never treat the property as if it were their own, hike up repair costs (often giving themselves a commission at both ends). Yet on the important things they screw up.

You do not have to accept any rent increase till January, considering what you have said I do not think you have a lot of security and I would either plan to leave in January because there are much better landlords out there, avoid dealing with agents, look at OpenRent and online agents, start looking in October, you will avoid all those fake fees.

Letting fees to tenants are going to be banned which is something I have felt for years should be the case. Agents charge both ends for the same work and they just make up fees in moves that are worthy of RyanAir!

Landlords will not take such shit and they can claim their costs back against their tax, so it makes sense.

So your choices are to remain in the property dealing with the Landlord, to sign another agreement at whatever rent they say or to leave in January.

Even their own agreement says they can only increase rent annually and just because it says they can does not mean they will or should.

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Sasha 30th July, 2017 @ 09:43

Thanks @David

I've tried to liaise with the landlord and have been clear from the moment we realise how useless the agency was.

One of the other issue, when we moved, the windows had been painted shut, and I'm talking about several coats of paint, they needed a chisel to open them.

The agent decided to have a company quote on having the windows replaced by a double glazed ones, I believe at that point the landlord was not very impressed as I said it's a good side house. The landlord then showed up one day with his own builder to have he start working on getting them opened, this was 2 weeks after we moved. Had there been a fire on the lower floors, we'd probably not had a chance to escape.

When the landlord showed up, I showed him all the other problems and he told me that he wasn't aware, and I should write to the agency (WTF I've just told you that they ignored that, you can surely have your builder look at the issues and authorise any repairs) I also made clear to him that we'd never asked to have the windows replaced, it was the agents idea, the one other time I spoke to him with regards to the same old issues that hadn't been sorted, again I stressed to him that the agents were being very irresponsible and I wasn't sure if the information was being passed to him correctly so I just wanted to inform him correctly. Again he just contacted the agency and never came back to me.

I've been told by his builder that the landlord has several houses around, I feel like he would rather an agent dealing with them as he cannot be bother to deal with the likes of us directly, he's just coming across as an arrogant and greedy C**t if I'm being honest. At the same time the agents tell me that any repairs have to be approved by the landlord.

I'd also contacted the landlord when I saw some discrepancies on the contract and he said I've got no problem with that, it must be the agency requirements speak to them. I was thinking WTF, it's your house! The agency cannot give us a contract contrary to what you expect.

I have started to look for houses, even before this, I had a feeling they might not renew the contract as they believe they can find better tenants, good luck to them I say! I will leave the house but I will make every single complain in the books to the council, trading standards and every other agency involved, it's not fair that this agency is still allowed to trade, and mislead their costumers, I would not want anyone else to go through the problems that we've been.

Thank you very much for your advice.

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Bernadette Vinarao 3rd October, 2017 @ 13:59

Hello,

I need advise. We have signed a Shorthold Tenancy Agreement for 12 mos (date = 14-Jan-2017) but there is a break clause which states that "Providing the property is tenanted for a minimum period of six months then at any time after the 13th July 2017 either party shall have the right to terminate this agreement by the Landlord serving not less than two months’ advance written notice and the Tenant serving not less than one month’s advance written notice."

We have tendered our notice 2 mos in advance in September that we will terminate the tenancy on the 10th Month, but the Landlord came back saying we are to pay for the whole 12 mos.

Can you help confirm if our understanding is correct that we are not legally binded to pay for the remaining rent provided we complied with the what is stipulated in the break clause and notice period? Thank you so much!

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David 3rd October, 2017 @ 18:20

@Bernadette Vinarao

Without seeing the full agreement I cannot absolutely guarantee but yes, usually you are right, that is a break clause and it terminates the contract as long as the conditions have been met (which they seem to have been).

Even if there was not such a clause they would not be entitled to make you pay the full term, but at worst their actual additional costs, this would not include agent fees which they would pay anyway a few months later.

Now would be a good time to make sure that your deposit was protected in an approved scheme and that you were give the prescribed information IN FULL relating to that deposit within 30 days by the Landlord (not just the deposit company notification). If they screwed this up you could be entitled to between 1x and 3x the deposit.

If the deposit HAS been protected you must contact the deposit holding company and log into the portal, you do not pay another penny in rent, you leave as planned and you ask the deposit company to pay you your deposit back, the Landlord will have an opportunity to dispute in which case you simply show the break clause to them and a copy of your notice having complied with the terms of notice by giving your notice.

There is an outside chance that the Landlord will say he is not happy for the deposit company to act as arbiter in this matter in which case you issue a letter before action, then take the Landlord to Court for breach of contract and you claim your costs and court fee back from them. The Court will take a dim view of them not returning the deposit via the scheme and wasting the Courts time.

You need to make sure that the property in the same condition that it was when you moved in, I hope you took video but if not take it now in case there are any allegations of damage. Video the whole property as a walk through and then again close up.

I would fire off an email to your landlord along these lines:

"Dear Landlord

I was somewhat surprised to receive your communication asserting that we were obliged to pay you for the full 12 months of the tenancy.

I refer you to section X.X of our contract which is a BREAK clause, we exercised the break clause in accordance with the terms of the agreement which effectively terminates the contract (it's purpose in contract law).

We will vehemently dispute your assertion of our liability in this matter and will seek the return of our deposit via the deposit company, we also reserve our rights to take legal action for the recovery of our deposit if not forthcoming and will seek our legal and other costs in this matter.

I would be grateful if you would kindly confirm that you were mistaken so that we may depart on amicable terms.

Yours sincerely

BV "

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Dianne 16th October, 2017 @ 10:34

Can I ask a simple question. Firstly my friend has been renting privately for 2 years her tenancy is up 1st January 2018. Her landlord has just told her they are going to sell the property which is ok. My question is ....as she has to look for alternative rented property, if she was to find one and could move in straight away would she still be liable for rent until 1st January. As finding suitable property is hard and if she finds one now they won't hold it till her other tenancy ends.

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David 16th October, 2017 @ 21:41

@Dianne

It depends on whether her tenancy includes a break clause.

There is usually a section in the tenancy agreement called Term, it will say that the term is 2 years from Jan 2016 to Jan 2018.

There may be a clause near there that says that the agreement may be terminated under certain conditions, for example after a period of 1 year by either party giving 2 months notice. Each clause is bespoke although they are overridden by common law.

So she needs to have a scan of the tenancy agreement and see if there is such a clause, some have a heading of Break Clause others just have it embedded.

If there is no break clause she can still give notice, withhold her rent and give the Deposit holder (assuming it was legally protected) permission to give the Landlord the deposit but she would open herself up to breach of contract. As the property is for sale so no reasonable chance of the Landlord letting to another tenant (as minimum term is 6 months for an AST) she would be liable for the shortfall. As I have explained in other replies it may be more hassle than they can be bothered to chase.

Always worth checking the deposit was protected within 30 days and that she was provided with the prescribed information also within 30 days of deposit being taken.

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Alan 17th November, 2017 @ 15:15

Hi David,

Due to a critical assignment , I was deployed to work in UK from India in the month of July 2017 for a period of 10 months, likewise I found a studio apartment and signed a fixed agreement up until May 2018 with my letting agency who also take cares of the property in which I live in, while signing contract I asked my agency about the process of early exit and I was informed that they need to be notified one month in advance.

And now that the project I was working moved to a different location, I need to head back to India, I did inform my letting agency that I would be vacating in the month of January 2018, they are asking me to pay £240 as marketing fees to advertise the property, kindly advise if this is legal?

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David 17th November, 2017 @ 22:28

@Alan

From a legal point of view what is said MIGHT be taken as a verbal contract, ideally you would have a witness to what was promised or have referenced it in an email from the time. Even if you had referenced it when you informed them you were leaving in a way that confirmed what they said at the viewing, for example....

"As agreed when I viewed the property, I am informing you at the earliest opportunity that my UK contact has been cut short and I will now be vacating the property early, in January 2018"

However, what matters most is what is actually in the agreement, you did not say whether your agreement has any break clauses? They are usually near the TERM.

Some say that you must give notice but can't end the agreement till 8 months in, every agreement is different so you need to check or send me the agreement via the forum link below (AFTER registering for the forum link at top of page send me a PM by following link below.)

bit.ly/davidpmp

So legally the deposit is held for the performance of the contract, the performance says you will do what you say you are going to do.

Having said that the former Office of Fair Trading created guidance on unfair contract terms in Tenancy Agreements, this is seen as the benchmark by Judges and by the Deposit Protection Arbitures who handle disputes.

You can download a PDF copy here

http://bit.ly/oftguide

In any situation where one party holds another party liable for losses, they have to mitigate such losses or at the very least give you an opportunity to do so.

For example if you go on holiday and the hotel is still under construction you have to inform the Tour Operator so they can move you immediately and mitigate their loss, rather than come back and say "we want all our money back".

With tenancy agreements there are two aspects, one is landlords that try to charge you for the remaining rent, the other is where a landlord charges you excessive fees for finding another tenant.

In these situations the Landlord may actually be better off because of increased rents in the area. You can demonstrate this by putting the property on OpenRent at 20% above what you are paying, taking enquiries and getting commitments from people to pay that level of rent.

OpenRent can also help you with the so called Marketing Fees, the fact is these no longer exist. In the old days they used to put a property in the local paper, now it can be put online for free, if there are no enquiries you can pay a small amount to get it put on Zoopla and Rightmove, even this site has offers, such as Rightmove for £45.

This is important because you may only be charged for actual costs incurred and if you increase the rent you can offset those costs.

Also they cannot charge you for something they would have had to pay anyway, I have seen numerous deposit disputes that came to Court because of the failure to protect a deposit in an approved scheme, where the Landlord tries to invent deductions from the deposit. Of course I pointed out that any marketing fees would have had to be spent just a few months later so in accordance with OFT356 (PDF above) they can only charge for extra costs caused by the tenant.

Note it is worth checking that your deposit was protected within 30 days and that you were served the Prescribed Information relating to that deposit. If not you may claim between 1x & 3x from the Landlord, even if it was the agent's fault, the Landlord can then take legal action against the Agent.

Bear in mind you are dealing with an Agent here, they make their money by fleecing Landlords and Tenants alike with made up fees as high as they think they can get away with. I had a client where they said he had to pay the profit they would have made during his tenancy! Complete Bullshit.

Now I must mention that December is a dead month and it may take a few weeks into January before it picks up, so I would get advertising now in case their are any people planning a January move.

Be advised that Agents like to think they do some sort of magic so they may resist you finding tenants and they certainly have the right to check their suitability, if the Landlord wants them to. Some Landlords employ agents because they can't be bothered, others have too many properties, so they may insist the agent does check them out. However, referencing can now be done online for a fraction of what it used to cost and you can do the donkey work on checking references.

So I would drop them a line along these lines...

"Dear Mrs Agent

Thank you for your letter of 17th November.

I have taken advice on your suggestion that I am liable for Marketing Costs for the property and am afraid I must reject these for the following reasons:

1. The Landlord would have had to pay the Marketing Costs just a few months later.

2. In any event these costs do not reflect the actual costs of finding new tenants, these can be found for free on OpenRent and may be referenced for £25, again the Landlord would have had to pay to reference new tenants in any event.

3. There is a legal duty for the Landlord to mitigate their losses, I have given you three months notice which gives you plenty of time to get a new tenant without a void and most likely at a higher rent. To prove this I have advertised the property on Openrent at 20% above my rent and obtained 23 enquires of which at least 10 are good potential tenants and seriously prepared to pay that level of rent. I would rely on this evidence in any dispute arising between us either in Court or with the Deposit Protection Company.

4. There is nothing in the Tenancy Agreement that gives me the obligation to pay the suggested fees and even if there were it would be seen as an unfair contract term which I would bring to the attention of the Court and Trading Standard.

5. I informed you when I viewed the property that I could be called back to India if my contract was cut short and it was agreed that I would be allowed to break the contract early without penalty.

I would like to leave the property amicably, for this reason I am prepared to pass on the leads from my advertising the property, I am also willing to co-operate in viewings by showing tenants around myself to save you time.

What I am NOT prepared to do is to pay exorbitant fees, of course I understand that you may charge the Landlord such fees but that is between you and them.

I will of course be leaving the property in the condition in which it was rented to me and I am prepared to pay £50 for professional cleaning of the carpets in accordance with the tenancy agreement.

Yours sincerely

Alan Tenant

----------------------

Sent that and see what they come back with, if they remain aggressive we can write to the Landlord.

Meanwhile it is worth checking your deposit was protected within 30 days of you paying the deposit and that the PI was valid.

bit.ly/chkdep1

bit.ly/chkdep2

bit.ly/chkdep3

Also get an ad up on OpenRent, do not put the actual address, at this stage you are primarily interested in proving the market will provide adequate interest at that price level.

BTW you might be in a position to ask your employer to cover your costs of their ending your contract early.

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Alan 20th November, 2017 @ 10:47

Hi David,

Appreciate your quick response and this helps me a lot, I did register myself in the link you shared but unable to find the option to upload my contract however I have gone through the contract and I don't see a break clause included in it. Sorry for sharing incomplete information, I see that my deposit is protected with TDS and hence I have sent an email to the agency that I will be raising this as an dispute with TDS for which I am yet to get a response.

I will also top up my email with the above pointers which will definitely shut them off, I will PM you if I hear back from the agency.

I would really like to thank you for taking time and helping me with the best suggestions and it means a lot to me:)

Thanks and Regards
Alan

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vince 4th December, 2017 @ 13:04

Hello, our fixed term contract ended few days ago. The agency/landlord now wants to renew to a new 1 year fixed term with a 2 months break clause and an increase of the rent. I'm looking for a new job and we're open to relocate if needed, so looking for more flexibility.
We don't have the contract as we didn't agree yet. But they want us to pay the renewal fees first to have the contract.
Do we have the right to read the contract first, before paying the fees? We are afraid they'd put unfair clauses for us and refuse to change it.
We asked for a periodic tenancy in order to have a month period notice but they refused. We even told them we'd like to add a clause that guarantees that, if we move out, we'll pay the rent until we find a suitable replacement. Even in the unlikely event we can't find someone for 6 months. This way we could move out earlier if we need, and the landlord would still get his rent and never be without income. They just ignored this proposal and kept telling us they want a fixed term and that they need more than 1 month to find new tenants.
We'd like to have some flexibility as 2 months still might be strict if anything happens. What problems can they have regarding this clause we suggested?
Also, does the tenant also need to stay for an initial 6 months, before being able to give notice? Or does a 2 month break clause just means we can always move out as long as we give a 2 months notice?
Thank you

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David 4th December, 2017 @ 15:27

@vince

In the UK there is no assured tenancy except for the 1st 6 months of a new tenancy, after that it is what is agreed in contract that matters.

So you need to decide, are you prepared to risk leaving this property in the next 3 months or will you comply?

They can't refuse the SPT, the moment the contract ended and you did not leave, the SPT was created by Statute and can only be terminated with issue of 2 months notice on a proper S21 form.

The terms of the SPT mirror the previous tenancy EXCEPT that you only need to give 1 months notice and they need to give 2 months notice.

In your position I would be reluctant to sign a new agreement that gives you no added security or benefit.

A rent increase on an SPT has to be done in accordance with Section 13, where they have to propose the rent increase using THE PRESCRIBED form (as defined in the act below)

http://www.legislation.gov.uk/ukpga/1988/50/part/I/chapter/I/crossheading/rent-and-other-terms/2006-06-16?timeline=true

Here is a layman version but check the law too.

https://www.gov.uk/private-renting/rent-increases

You can then challenge and refer that, you might want to check LHA rates in your area if you do want to stay and want a barometer of rent.

We often find agents wanting to push up rents and therefore their commission, make sure that the Landlord is made aware of your comms with the agent by sending them a copy.

Of course you have the right to see a proposed new contract and take legal advice on it, in fact this would be a good delaying factor. Ask them to provide a copy of the proposed new contract for your consideration, then once you have it say you will need 14 days to get proper advice.

Then write to reject the proposed agreement, they then have to serve you a Form4 if they wish to propose a rent increase on the SPT and you can delay that by at least 28 days.

NOTE paying the higher rent is deemed as acceptance so DO NOT PAY until you have decided!

Agents also like to get new tenancies just to rack up their fees, they often double dip by charging the Landlord and the tenant.

Why on earth would you propose or agree to take on liability to get new tenants, that is their job. If they can't find new tenants in a month well that is tough, shows how incompetent they are. Most agents just stick ads on Open rent and Gumtree as they are tight bar stewards.

They like to make Landlords think that there is some magical trick, fact is it depends on the area, time of year, level of rent and quality of property.

For now stall them, ask for a copy of the proposed contract, they can't evict you without proper notice and they can't even show people around if it not convenient for you.

If they decide to issue an S21 notice to quit then you can become uncooperative, start by making sure that all prerequisites were done (how to rent, EPC, Gas Safety, Deposit protection, PI etc). If there has been a new version of How to rent issued by Gov then to terminate SPT it needs to be provided before the S21 is issued.

Tenants often change the cylinder in the lock to prevent unauthorised access by agent, and then give the agent a window to show tenants or just fob them off by asking them a date they want to bring a tenant and then responding by saying "sorry that is not convenient".

It is also worth checking your deposit was protected in an approved scheme and that you were served the prescribed information both within 30 days of taking your money.

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MdeB 4th December, 2017 @ 17:25

@Vince:
NEVER pay for something until you are sure it is what you want.

Of course you have the right to see the proposed agreement before you pay for it.

Even if you agree with the terms in general, you do not have to accept the agreement:you have the right to remain on a periodic tenancy (either Statutory or Contractual) when the original term ends.

As you expect to be moving in the next few months it is unreasonable to commit to longer, so your first request (once you have seen the proposal) is to request that you can end the tenancy with (say) 2 months notice at any time without penalty.

As David says, contact the landlord directly as she may not be aware of what the agent is doing and may want to keep you to avoid a void period. There is a legal requirement for the Landlord to provide their address to a tenant on demand (sorry, I do not have reference at my finger tips, but I think it is one of the Housing Acts before 1996; there are two sections that address this: one allows an agent's address to be used, the other requires tat it be the landlord's address).

The down side of being on a periodic tenancy is that the Landlord can serve a S21 notice giving you 2 months' notice to vacate.
However, the Landlord has to follow strict rules for the notice to be valid. These include:
- being on the correct version of the prescribed form.
- Identifying the Tenant correctly (if a joint tenancy, then all parties must be named)
- Certain information must have been provided to you, including Right To Rent booklet and an Energy Performance Certificate. The Right To Rent booklet APPEARS to need to be reissued when a Statutory Periodic tenancy arises (because it is a new tenancy and there is no exemption in the legislation or statutory instruments) but not for a Contractual Periodic tenancy (because it is a continuation of the original tenancy).
- being completed correctly.
- having correct notice period when it is served (or deemed served if posted). An iteresting little quirk appears to be that anything served (received) after 16:30 is deemed served the next working day (Saturday, Sunday and Bank Holidays are not working days).

So it is worth getting Citizens' Advice to advise on whether or bot the notice is valid. If it is invalid you do not have to tell the landlord/agent until they come to rely on it (or, maybe, if they ask when you will be leaving), and even then you do not have to tell them what is wrong.

If you go to court with an invalid S21, then Landlord cannot claim associated costs from you.

Finally, this is a rip-off perpetrated by some letting agents, and they deserve to be screwed if they try it on. There is no reason why a tenancy should not continue as a periodic tenancy after the term, other than the agent wants to screw money out of the landlord and the tenant.
I let tenancies go periodic unless the tenant wants otherwise, or there are changes in the law that need to be incorporated. If the tenant wants a new agreement, then a charge to cover costs and time may be made; if I want to change the agreement, then no charge and a tenant break clause so they can get out at any time.

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MdeB 4th December, 2017 @ 17:31

@Vince,
On re-reading your post I see they are already proposing a 2-month break clause, so your first proposal is for a 1-month break clause for you.
Later yo can ask that there be no landlord break clause (LL should not need one; she can go S8 if circumstances change).

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Vince 4th December, 2017 @ 23:46

@David
@MdeB

Thank you so much for your replies. They're really helpful.
We'd really like to avoid all these hassles if we can and avoid to antagonise them, if possible.
We also did already contact the landlord and explained the situation, but he replied as if he didn't want to deal with us, telling us we should talk to the agency and that he just wants to have a decent notice so that he wouldn't be without income.
We know that before we moved in, they had to decrease the rent by 50£ because apparently they couldn't find anyone. Not sure why, but perhaps agency fees could have been an issue.
So we believe they told the landlord that it's very difficult to find someone within a month.
We already asked several times to stay on a periodic tenancy, but even after explaining the situation to the landlord, the agency told us he absolutely wants a fixed term.
That's why we tried to meet them halfway and told them we would guarantee to pay the rent until we find a replacement and arrange viewings. We really think we could find someone pretty easily. It's a nice house, in a pretty good location too, and the rent I would say it's pretty average. Not too low, not too high.
We don't want to risk being evicted, as I don't know if/when/where I might find a new job, and also don't want to risk having a bad reference.
Vince

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David 5th December, 2017 @ 01:34

@Vince

So you have answered your own question, you are not prepared to take the risk of the S21 or bad reference, so sign for the new tenancy with the 6 month break clause and the increased rent.

However, I would still ask them for a copy of the agreement before you sign it, if not you sign it and write "signed under duress not given opportunity to read agreement" underneath, that way if there are any issues a Judge will see that, make sure that there are two copies that you sign, not one and they say they will send you a copy. Take a photo as you sign.

Still worth checking deposit protection and PI on both tenancies once signed.

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vince 5th December, 2017 @ 09:53

@David

Sorry maybe I didn't understand very well. Why you say 6 month break clause? You mean that even if it's a 2 months break clause contract, we still need to wait for the first 6 months before being able to move out?
They initially offered us a no break cause contract, that became a 6 months break clause. Then after telling them even a 6 months break clause is too restrictive for us, they offered a 2 month break clause.

We will definitely ask for a copy of the agreement before paying for it. For the first contract, they used DocuSign and we signed the digital contract online. Will that be enough? I guess they will use the same for the new one too.

For the deposit this is what the contract says:

The Deposit is held by the Agent as Stakeholder. The Agent is a Member of the Tenancy Deposit Scheme. At the end of the Tenancy the Agent, shall return the Deposit to the Tenant, without interest, subject to the possible deductions set out in this Agreement.

Could this be a problem?

Also, could you explain what is a PI?

Thank you very much

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David 5th December, 2017 @ 11:30

@Vince

Sorry I thought you had said a 6 month break clause, a 2 month break clause is pretty reasonable to be honest.

What most Landlords want is their properties rented as long as possible with no voids, ideally by someone who will look after the property as they would their own.

I think the most important thing is you try to maintain a cordial relationship with the Landlord, sometimes the agent is in the way of that but either way your Landlord has indicated they wish you to deal with the Agent.

The law says that any deposit taken in connection with a tenancy must be protected in one of the three Government approved schemes, these are run by DPS, TDS and MyDeposits.

There are two methods of protection, Custodial or Insurance Backed, for the Custodial the actual money is paid to the deposit company while with the Insurance backed scheme the Landlord or Agent pays a fee and keeps the money. The insurance will payout if the Agent or Landlord go bust and the TDS would call the money if there was a dispute at the end of the tenancy. The most common dispute is the difference between fair wear and tear vs actual damages.

It seems that your agent uses TDS, but that entry in your lease does NOT mean they protected your deposit. Agents are renowned for screwing this up, in theory all they have to do is give the TDS the details of your tenancy, the deposit amount, date, property address, your name, mobile number, email etc and pay the fee. Yet it is astonishing how many agents fail at this simple task.

Some agents get kicked off the insurance scheme because the deposit company has concerns about their liquidity or behaviour after complaints received.

Some policies expire because they are not renewed by the agent or Landlord.

Usually you would know if your deposit had been protected because not only do the deposit company send you an SMS or Email (as well as give you a Deposit protection certificate) but the you have to be given the PI by the Landlord. The Deposit Protection AND PI must be completed within 30 days of taking your money.

When the Deposit Protection legislation came in there was a lot of resistance from dodgy Landlords who seemed to think the deposit was their dilapidation fund for redecorating or replacing white goods etc. Some protected the deposit but did not tell the tenant where it was protected, how they could access it or how they could dispute any claim on their deposit.

So the law was tightened up and Landlords (or their agents) were obliged to provide the exact details prescribed by the new law. The PI is short for the Prescribed Information and this is what the law says

Prescribed information relating to tenancy deposits

2.—(1) The following is prescribed information for the purposes of section 213(5) of the Housing Act 2004 (“the Act”)—

(a)the name, address, telephone number, e-mail address and any fax number of the scheme administrator(1) of the authorised tenancy deposit scheme(2) applying to the deposit;

(b)any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act(3);

(c)the procedures that apply under the scheme by which an amount in respect of a deposit may be paid or repaid to the tenant at the end of the shorthold tenancy(4) (“the tenancy”);

(d)the procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy;

(e)the procedures that apply under the scheme where the landlord and the tenant dispute the amount to be paid or repaid to the tenant in respect of the deposit;

(f)the facilities available under the scheme for enabling a dispute relating to the deposit to be resolved without recourse to litigation; and

(g)the following information in connection with the tenancy in respect of which the deposit has been paid—

(i)the amount of the deposit paid;

(ii)the address of the property to which the tenancy relates;

(iii)the name, address, telephone number, and any e-mail address or fax number of the landlord;

(iv)the name, address, telephone number, and any e-mail address or fax number of the tenant, including such details that should be used by the landlord or scheme administrator for the purpose of contacting the tenant at the end of the tenancy;

(v)the name, address, telephone number and any e-mail address or fax number of any relevant person;

(vi)the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy; and

(vii)confirmation (in the form of a certificate signed by the landlord) that—

(aa)the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and

(bb)he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.

https://www.legislation.gov.uk/uksi/2007/797/article/2/made

If the deposit is not protected or the PI not served within 30 days then the tenant can be paid a sanction of between 1x and 3x the deposit, per tenancy. They can make a claim up to 6 years of being made aware of the failure.

So your first port of call is to check the deposit has been protected, if you use the links below and enter your surname, deposit amount and postcode of the property etc it will tell you. The first one is TDS but you should check all three.

http://bit.ly/chkdep1

http://bit.ly/chkdep2

http://bit.ly/chkdep3

Now if it does not show protection you do not have to bring a claim right now or even at all, consider it an insurance policy, so if and when you leave if the deposit is not returned in full and promptly then you have leverage.

To be honest your agent is incompetent because they should never have allowed the tenancy agreement to expire, their original tenancy should have been a contractual periodic which means that after the initial term expired it should have reverted to a month to month tenancy with the 2 month notice for each side. In fact to avoid more fees a year down the line I suggest you come back recommending that they make the tenancy agreement a contractual periodic tenancy so you and Landlord avoid further fees for tenancy preparation.

Now because of their incompetence you have an SPT, they may try to cover this up by backdating any new contract, you should reject his, any new contract needs to start on the day it is signed or a day after, but not as a continuation of the previous agreement.

If they did not protect your original deposit or issue you with PI within 30 days then if you can stall them till 30 days of the SPT it will have created two failings and double the potential sanction liability.

So in the first place ask for an electronic copy of the proposed contract, then say you need to take legal advice on the contract for 14 days, then after 14 days come back and suggest it is revised to be a contractual periodic, then review that agreement (I am happy to review an agreement for you and can give you a method to send me a private link). Then you agree to the new tenancy with effect from a date that is at least 31 days after the SPT. Note if the original tenancy started after Oct 2015 and WAS protected and remains CONTINUOUSLY protected then it is deemed to protect the SPT, but a lot of the Insurance backed schemes expire.

Now if there is one thing we can depend on it is that an incompetent agent is true to their nature, so if they screw up on deposit protection once they may do it again.

They may have protected but not issued the PI, they may have protected but it expired with the tenancy (so not continuous protection), they may not have given your details to TDS. There are so many permutations I can't list them all, so post back here if you have a specific query.

So when you do your checks you need to take screen shots or jing videos and save the web page if it says it was not protected. I would then follow up by calling the TDS if not found and ask them to confirm it was not protected, if they confirm it was not protected ask for a confirmation of that by email or letter.

Do NOT give them the details of the Agent or Landlord, just the property address and the amount and the month take plus your name.

The idea here is to obtain leverage and insurance for you later, I usually recommend a settlement which includes a positive reference, see the link below for more details

http://www.propertyinvestmentproject.co.uk/blog/tenant-threatening-legal-action-tenancy-deposit/

Overall I think your Landlord is being reasonable by offering you a 2 month break clause, you may not actually move so a contractual periodic is a sensible option for you and the Landlord.

All I am saying is do what makes sense for you and your circumstances and take necessary steps to protect yourself and give yourself leverage.

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MdeB 5th December, 2017 @ 11:41

@vince
If they are offering you 2 months' notice to get out at any time, then take it (but make sure that you can exercise tat right to terminate the contract at any point in the fixed term, and they are not tying you to at least 6 months. Maybe post the words here so that others can check).

PI is Prescribed Information. This is information that the Landlord must provide to the tenant (it can be in any form).
It is defined in "The Housing (Tenancy Deposits) (Prescribed Information) Order 2007", which can be found on-line. (the layout is a bit difficult to reproduce here).

Agent holding the deposit should not be a problem.
Looks like they are using the Insured scheme.
You should have received notification that the deposit had been protected, with reference number so that you could check.

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MdeB 5th December, 2017 @ 12:00

@Vince @David

Looks like David and I were replying at the same time.

A contractual periodic contract does little, if anything, for the tenant over a statutory periodic tenancy, but does offer advantages to the Landlord. Disadvantage to tenant is that they are stuck with notice terms in the contract when it goes periodic.

I suppose that, in theory, it could avoid renewal costs, but agents are likely to want a new contract anyway (to get their renewal fees).
Contractual periodic tenancies are also a problem with insured protection schemes, so agents might not go for it: some schemes do not recognise them and only have processes for becoming statutory periodic; all schemes probably require payment on going periodic.

If Vince can get a reasonable deal, then probably not worth antagonising agent and risking S21 by delaying tactics

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David 5th December, 2017 @ 12:31

@Vince

I stand by my original post, Most Agents are useless and incompetent self serving leeches in my opinion.

Of course they avoid anything that robs them of their ability to stitch up Landlord and Tenant alike.

There is no risk of S21 in delaying, you are merely asserting your rights, if the agent was not so incompetent they would have sorted this 3 months before the tenancy expired.

If they try to put pressure on you simply respond by saying, "please do not put me under pressure to rush into a new legal agreement which binds me without giving me adequate time to get professional legal advice. It is not my fault you are doing this so late in the day" (copy to Landlord).

Always be courteous when dealing with them.

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Jess 6th December, 2017 @ 00:54

You seem a bit of a hero David! Looking for some advice - housemate has breached contract with her partner moving in and agency doesn't really care/I can't prove it (he pays rent for his ex and kids, so on paper he does live elsewhere!) basically I'm sick of him leeching and listening to them argue all day every day.
There's a 6 month break clause with a 2 month notice period, but as it is a joint tenancy can I enact it without her permission?
As for the deposit scheme, I received confirmation for the first year we lived in the house August 2016 but have not received a new one for the new contract that started in August 2017 (I assumed it just rolled over, but CAB said no!)
Break clause specifics "this agreement may be terminated by either party giving at least two months notice in writing to expire at any time after six months from the commencement date of this agreement as specific in terms under the heading particulars in this agreement."

Cheers.

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David 6th December, 2017 @ 02:38

@Jess

Thanks for kind words but just doing what I can when I can.

For a tenancy that started after Oct 1 2015 where the original deposit was protected on time AND the PI issued on time, then it is deemed as served if that tenancy becomes SPT, i.e. if the tenancy expires and tenant(s) remain in property.

However, for a new tenancy agreement (not a one page renewal) they need to issue new PI, note that PI is not the confirmation from deposit company, it is a separate notice that contains all the information about the tenancy. This will differ from original tenancy in at least start date.

I have seen documents in Court papers from one the deposit companies where they are making an attempt to provide the PI in a new format. In my opinion it is only a matter of time before this is challenged, it is not provided by the Landlord and it misses some of the information required. We had this before with DPS terms, time and time again I saw them challenged, but the How to Rent doc had put paid to such claims (if provided).

The simplest way to find out if your deposit is still protected is to check these links with the details on the new contract

http://bit.ly/chkdep1

http://bit.ly/chkdep2

http://bit.ly/chkdep3

It needed to be protected within 30 days, in the event of a action for sanctions you would not be able to proceed without your housemate authorising you to bring the claim.

Usually it is the same for the tenancy, you are joint and severally liable for the performance of the contact.

The term you quoted talks about either party, but that usually means either the landlord or the tenant, in joint tenancies you usually both have to agree, but it depends on what else is said in contract.

I would need to see a scan of whole contract to be totally sure. If you want me to check, let me know and I will give you details of to get it to me.

It seems to me that your Landlord is actually in breach of the agreement, it will specify the names of the tenants and most tenancies have rules about guests, how long they can stay etc.

You could drop a line to the Landlord informing them that you have advised their agent that housemate is in breach of the agreement and either they enforce it or you take action to recover your losses. There is a loss of amenity if you have to share it with a 3rd person and it was intended for 2 people.

There are all kinds of aspects to this, you may not feel safe, your food could be being eaten, the two of them are creating a hostile environment.

You can report it to the Council to see if they consider it overcrowding, it is a bit thin but it creates a public record and you should provide a log of every day he has slept at your property. It does not matter that he pays rent elsewhere to an Ex, what matters is where he lays his head and how often, so create the log.

You need to think of your goal, getting them to enforce will probably piss off housemate and may make them difficult to live with.

If he were not a leech you might have offered for him to take over.

If the contract started 1st Aug 2017 with a six month break clause you are looking at February 1st as the earliest break, then December 1st was earliest day to give notice. So if you give the notice on 7th December the tenancy can be terminated on 7th Feb.

You might want to keep the housemate sweet by not attributing blame, just say you might be taking a new job and need to get out so you are bringing contract to an end.

See if she will sign a notice to quit, she may then decide to have tenancy in her name, take a new tenant or get the leech to man up.

If she will not sign notice to quit then you can spin it another way, say you will get her some cash, say around a third of the deposit. If she goes for that you get her to sign notice to quit and an authority for you to bring any claim against landlord on her behalf in respect of the Housing Act.

If she will not agree then you flip it, you approach the Landlord, say you want them to release you from your obligation and end the tenancy giving you back your deposit in full and providing you with a positive reference.

You say if they do this you will sign a settlement agreement not to bring a claim for their failure to protect deposit or issue the prescribed information within 30 days. In such an agreement you will agree not to authorise any claim.

You really have to do this direct with the Landlord, agents are renowned for getting in the way. They will give you all sorts of BS about your liability.

Your tenancy agreement and the original PI should have the details of the Landlord, if not you can request it and if the agent does not provide it you are entitled to temporarily withhold rent until they do.

You can of course pay £3 to Land registry site and get Landlords name and address from there. If the original PI does not include landlords details then it is invalid and even more sanctions may be liable.

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MdeB 6th December, 2017 @ 09:58

@Jess
Case law says that to exercise a break clause before the end of the fixed term requires the consent of all the people that signed as tenants; to end a periodic tenancy requires only notice from one of the tenants.

One thing that David missed is that the property is now a HMO (House of Multiple Occupation).
If HMO licensing is required in your area,then the landlord may be in breach of the law, and that would give you leverage to get something done.

Also David wrote "If the contract started 1st Aug 2017 with a six month break clause you are looking at February 1st as the earliest break, then December 1st was earliest day to give notice".
That is incorrect: December 1st is latest date that notice can be given (and that may be cutting it close); notice can be given at any time before December 1st (in this example). It is always best to give a few days over the 2 months, to allow for delays in delivery of the notice

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David 6th December, 2017 @ 10:16

@Jess

I stand by what I said in my post, it seems that MdeB just wants to respond for the sake of it, usually with anal retentive nit picking that do not help you or others reading the blog.

Your property will NOT be an HMO unless it exceeds 2 households, a couple is one and you are the other, that does not exceed 2, I have demonstrated before that MdeB struggles with maths.

With regard to your notice, I generally do not suggest that people go into a time machine and give notice.

The key part of your break clause is the "at any time after six months from the commencement date of this agreement"

So the only limit is AFTER six months which in the example I gave would be to expire ANY TIME after February.

So it being ANY TIME means there is no deadline, it is effectively a minimum term of six months which is what I said.

The contract may be terminated anytime after that subject to terms and will expire at the end of the term unless it is a contractual periodic.

"this agreement may be terminated by either party giving at least two months notice in writing to expire at any time after six months from the commencement date of this agreement as specified in terms..."

With regard to notice from both tenants, the most important thing is what the agreement actually says, which is why I suggested reviewing it.

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vince 6th December, 2017 @ 10:43

@David
@MdeB

Thank you so so much for all your advices! I really appreciate it.
We'll most probably accept the 2 months break clause.

We checked our deposit and yes it's an insurance backed TDS.
The certificate states:

"Ending on or after 27th November 2017"

Does it mean it's not expired? It doesn't say anywhere that it's continuously protected.
We did also receive the PI.

Many thanks

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David 6th December, 2017 @ 10:59

@vince

The terms will vary, some are protected for 3 months beyond a tenancy some expire same day.

Did you check online, did it say it was still protected online?

Your certificate is a snapshot of the status at the beginning of then tenancy. You need to check the terms, "ending on or after" means exactly that, is it referring to the tenancy or the protection?

I have seen agents kicked off or even them screwing up paperwork. There is no hurry just take screenshots and save the pages shown online.

For now get a copy of the proposed lease and review it.

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Jess 6th December, 2017 @ 11:43

@David

Deposit is held in DPS, under the same deposit ID as 2016, we did take out a new tenancy, not a renewal. The other tenant is lead tenant so unsure if she has had new confirmation. Landlord has stated the agency as his notice to address.

We haven't been on speaking terms for the last 4 months since leech moved in, she believes she's entitled to have him over because its her boyfriend. I've previously requested for him to take over the tenancy but he does not have ID, passport or bank account, even though he's working here and has lived here all his life.. They disagreed with taking over my half of the tenancy and paying higher bills/rent obviously.
I've started a diary of when he's here, it's my word against theirs so doesn't mean a lot. He's been here every day since the 7th November apart from 5 nights when they both went away and 1 night he spent in A&E for an overdose.

Would be great if you could look over the contract to see if I can use the break clause, the only thing I can see that joins us is under terms and condition it says "the tenant herby acknowledges that the rent and tenancy obligations are due jointly and severely from all tenants"

Thanks again
I'm in such a downward spiral at the minute and I just need to see a way out.

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David 6th December, 2017 @ 12:55

@Jess

To send me a PM, first click "Landlord Forum" at the top of this page, then register for that forum and click on the email sent to you to confirm your email address.

Then log into the forum and after logged in follow the link below.

http://bit.ly/davidpip

and send me a PM

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MdeB 6th December, 2017 @ 13:44

@david
@Jess

For someone who has suggested they have some form of legal expertise, you are very lax with accuracy.

It is important that accurate information is given, otherwise relying on that information may result in one having a legal position other than expected. It is not anal nit picking to correct inaccuracies in information provided.

Also a HMO is 3 or more people forming 2 or more households, not 3 or more households as you state.

I rarely struggle with maths, and have a degree in it.

I agree with David that if the contract allows one of the joint tenants to exercise the break clause, then you probably can (but it might be an unfair term on the other joint tenant), but if it does not say that, then it requires both of you to sign to to be valid.

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Jess 6th December, 2017 @ 14:22

@David
@MdeB

Thanks again both, no clue on the HMO thing, (my basic understanding is that its the same as tenants in common.) Leech is not on the tenancy so hasn't changed the actual tenancy only helped to break it.
Still looking for my get out of jail card.

Can I get out on the basis that the other housemate has breached the contract and therefore forfeited our joint rights?

As far I can see the deposit is still sitting 'active' in DPS, and expired 1/8/17. There's no new entry for the AST commencing on 1/8/17

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David 6th December, 2017 @ 14:51

@MdeB

You are really just showing yourself up to be some sort of keyboard warrior wanting a pissing contest or in plain terms you are a bit of a Pratt.

First you say I missed the HMO potential; I did not because it is not relevant, the guest is not a named tenant for a start, the lead tenant would suggest he is an occasional guest.

The HMO definitions are a combination of several factors, number of floors, number of tenants, number of households and even certain streets in some areas. Not all of these definitions are actually defined properly in Law or are left to the LA to define.

https://www.legislation.gov.uk/ukpga/2004/34/section/254

To make things more interesting, the Council can use
the Act to define things for themeselves:

(6)The appropriate national authority may by regulations—

(a)make such amendments of this section and sections 255 to 259 as the authority considers appropriate with a view to securing that any building or part of a building of a description specified in the regulations is or is not to be a house in multiple occupation for any specified purposes of this Act;

(b)provide for such amendments to have effect also for the purposes of definitions in other enactments that operate by reference to this Act;

(c)make such consequential amendments of any provision of this Act, or any other enactment, as the authority considers appropriate.

In addition to that there is a plethora of case law which I am not going to waste time on just because you are a Pratt.

It is just ridiculous to suggest that the property in question is an HMO.

You can suggest a property which is occupied by three of more unrelated persons, but the term unrelated is undefined in law and subjective, for example a household can be a single person or an extended family, children, step children, foster children, aunts, uncles, parents, mother in law or grandparents (there is a lot of cultural support here), not to mention sisters Brothers nephews cousins.

It can mean people that are married or people that live together as married, it can include same sex couples.

Knowing this and having got an alleged HMO allegation withdrawn quite recently, I do not waste mine or readers time with suggestion it is an HMO after reading her facts.

With regard to your maths, your alleged degree does not undo your mistakes, we are not talking about quadratic equations or binomial distribution which a teenager can do, but more like basic addition and subtraction of single digits; 6-2=4.

MdeB if you are not going to add actual value offering help then please refrain from nit picking, it detracts from the quality of the blog.

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MdeB 6th December, 2017 @ 19:25

@ David
It is a shame that you cannot accept when you are wrong and have to resort to insulting language that in no way helps readers of this site.
You have a lot to offer the posters with your knowledge and time.

My aim is to provide accurate information and to correct errors that may have been posted. Reliance by others on an error on your part will have no effect on you, but could have significant financial implications for tenants that rely on it.

I'm not sure why you introduced the term "unrelated"; it seems to be just so that you can shoot it down and hope that people will think it relates to something I wrote. I only mentioned Household, and that is well defined in the Housing Act 2004.

The definition of a HMO is well defined in the 2004 Act and does not depend on the number of floors. You are confusing "HMO" with "HMO requiring a licence".
That is why in my reply to Jess I said "If HMO licensing is required in your area".

You are right that the other tenant may lie about how often the man stays, but lying does not change the facts.

I say again that it is a shame that you cannot acknowledge when you are wrong, as it casts doubt on all the good stuff you have posted.

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MdeB 6th December, 2017 @ 19:36

@Jess 164

I think it unlikely that you could get out of the contract on that basis, but I have no knowledge or experience in that area.

Regarding the deposit, it depends on the agreements.
If both agreements were for the same tenants and the same property, and it is the DPS custodial scheme, then the deposit is properly protected.
If either of the first two are not met, then it should have been re-protected.
Otherwise, if it is the insured scheme, then you would need to look at the scheme's terms and conditions, or ask the DPS.

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Jess 6th December, 2017 @ 23:29

@MdeB
@David

Lads quit fighting. I need all the help I can get!

@MdeB
It's in a custodial DPS - But for a 12 month period starting 1st August 2016!

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MdeB 7th December, 2017 @ 12:28

@jess

Protection in the DPS custodial scheme never expires. That is why I use it.

Please confirm that the tenants are the same on the August 2016 and August 2017 agreements.
If they are not, then the deposit is not properly protected in law, but IS safe for the tenants.

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