Tenancy Agreement Break Clauses

I have lives in property for over 5 years always paid rent on time and maintained property to a high standard renewed contract last nov 2017 for a further 2 years
Now landlord has given two months notice to vacate property as they want to sell
How do I go about it as still under a term of 18 months remaining help !!!!

@Jay

Did the Landlord issue you with a S21 notice or just give you notice?

A S21 would only be legally valid if there were a break clause in the tenancy and the appropriate conditions have been met.

Without a break clause the S21 would be thrown out of Court, but some Landlords feel it is worth sending in case it makes you leave.

This may be an opportunity to negotiate a fee to leave

You do not have to show potential buyers around if it is not convenient and you may change the locks (regardless of what the tenancy agreement says) as long as you change the cyclinder back when you eventually leave.

If you wish me to look over your agreement.

Hi,

See below extract from the break clause. the agent is saying that notice supossed to be given in the sixth month and not before or after. move in date was 13 of November 2017 and is a 12 months ASP with the 6 month break clause. I think the break clause is unfair as is not straight forward, diferrent clause for tenant than landlord and I'm struggling to understand it.

2. Break Clauses Landlord’s Break Clause

The Tenant agrees that the Landlord has the right to terminate the Tenancy after the first Six Months by giving the Tenant not less than two months notice in writing to end the Agreement. The notice must expire at the end of a relevant period, being the 13" day of the month. When the notice period expires the Agreement shall cease. This does not affect the right of either the Landlord or the Tenant to pursue their legal remedies against the other for any existing breach of any rights under the Agreement.

Tenant’s Break Clause

The Landlord agrees that the Tenant has the right to terminate the Tenancy after the first Six Months by giving the Landlord not less than two months notice in writing to be served by first class post or hand delivery to the address:
to end the Tenancy. The notice must be served prior to the date upon which it takes effect but cannot take effect any earlier than 1 t May 2018 and cannot expire any earlier than 13" July
2018. Such notice must expire at the end of a relevant period, being the 13* day of the month. When the notice period expires the Agreement shall cease. This does not affect the right of either the Landlord or the Tenant to pursue their legal remedies against the other for any existing breach of any rights under the Agreement.

@Adrian

You are right that the break options of the Landlord and Tenant must be substantially the same or it becomes an unfair contract term.

The restrictive dates and terms also are unfair contract terms

He also can't enforce the 2 months notice.

I can help you draft a letter to the Landlord if you contact me via the forum, see post 175 for instructions on how to do this.

The Landlord has to mitigate his loss, so he has to try to get a new tenant at the earliest possible convenience, the fact that you can get tenants free via OpenRent shows there is no loss.

Landlords think that they can write any old shit in a tenancy agreement but that does not make it valid or enforceable.

I would need to see the agreement but if badly drafted such daft restriction might not only void the restrictive terms but the whole agreement rendering it a Statutory Period Tenancy.

In any claim a Judge would kick out those restrictive terms and simply say that you are entitled to give notice after the first Six Months, that is the mutual spirit of the agreement. The window of time would be rejected.

Have you checked that your deposit was protected properly?

If not there is a sanction payable and this can often be leveraged to reach an agreement.

Have a check on the following links for the three schemes.

http://bit.ly/chkdep1

http://bit.ly/chkdep2

http://bit.ly/chkdep3

Do not provide too much detail here that may identify you or your landlord, use the forum.

@Adrian #176:

In my non-legal opinion, the clauses appear to be very poorly written.

The first sentence of each clause appears to say that the tenancy can be ended at the 6-month point, but the subsequent paragraphs appear to suggest that the intent is that the tenancy can be ended at the end of any month from the 8th month onward.

The tenant clause then says "cannot take effect..." and "cannot expire...". These seem to me to mean essentially the same, but they have different dates, making it ambiguous.

Assuming that you had no opportunity to influence the clauses, I believe that the law says that where clauses in consumer contracts are ambiguous, they should be interpreted to the benefit of the party that did not write the contract.

Therefore, if the landlord is trying to get you out and you do not want to go, then it would seem reasonable to me for you to argue that the landlord clause allows notice to expire only at the end of 6 months.

If you are trying to get out and landlord/agent doesn't want to let you (because they are saying "only at end of 8 months") it seems reasonable to me to argue that "at the end of a relevant period" means that you can end the agreement at the end of any month by giving 2 months notice. Any other interpretation would be unfair (imo).

@david #177

You wrote "You are right that the break options of the Landlord and Tenant must be substantially the same or it becomes an unfair contract term."

That is not quite right. If it is unbalanced in favour of the landlord it is unfair, but if in favour of the tenant (consumer) it is fair.

I often include break clauses allowing tenant to end agreement early but not me (landlord), as I understand that people's circumstances change.

Hi,
I please need some advice. I have an 6 Months fixed term contract and I have to terminate early because of personal circumstances. My Tendancy Agreement says the following for termination:
1 Ending the Tenancy
1.1 If the Tenant intends to vacate at the end of the fixed term, or at any later date, he
agrees to give the Assigned Property Manager at least thirty days prior Notice in
writing by registered post before the 1st of each month.
1.2 While the tenancy is periodic the thirty days written Notice must expire the day before
a Rent Due Date.
1.3 If the Tenant intends to vacate on the contract break date as outlined in paragraph 1.6,
he agrees to give the Assigned Property Manager at least thirty days prior Notice of
the break date in writing by registered post.
1.4 If the Tenant terminates the tenancy during the fixed term, whether notice has been
given or not, then the tenant agrees to pay a £500 early termination fee to cover the
costs of re-marketing, voids, etc… which will be deducted from the deposit.

My landlord is telling me that I have to pay for the 6 Months (until there is a new tenant found) + the 500 Pound and it has to be to the 1st of a Month.
What I see is as we have an early termination clause I do not have to pay further then my time of notice. Also in 1.1 it is mentioned to terminate on the 1st of a month at the end of the contract or after, not before. Also the fee of 500 Pounds to claim for "costs of re-marketing, voids, etc..." seems to me a little bit high as in earlier comments said "you can advert for free at sites like OpenRent".

What is the legal side on this? can I e. g. terminate to the 12th of a month in an early termination? Do I still have to pay when there is no new tenant until the 6 months are fullfilled? Can they charge me the 500 Pounds or is that unfair?

@Gina

We see this all the time, a landlord puts in a term that scares a tenant but would be deemed as an unfair contract term, as such it is unenforceable and without a severance clause can invalidate other parts of the contract.

So forget the £500 for a start.

As I said above...

The Landlord has to mitigate his loss, so he has to try to get a new tenant at the earliest possible convenience, the fact that you can get tenants free via OpenRent shows there is no loss.

It sounds like the landlord is trying to take advantage and maybe double dipping or they could just be lazy. Why would they hurry to

One thing I advise tenants to do is you advertise the property on open rent at a slightly higher rent, use the same criteria that was on the ad you responded to, create a shortlist of prospective tenants who have good employment, can provide several references etc.

You can present those to the Landlord in writing and even if they decline to use them, the process demonstrates clearly with evidence that you can be replaced as a tenant for very low cost. Any barrier that is invented will most likely be seen as not mitigating their loss.

I can look over the agreement and draft you a response with a document you can send them to bring them into the real world.

Remember that to get ANY money from you they have to either make a claim on your deposit, or take you to Court, the latter is expensive and I can help you educate your landlord about this.

Have you checked that your deposit was protected properly?

If not there is a sanction payable and this can often be leveraged to reach an agreement.

Have a check on the following links for the three schemes.

bit.ly/chkdep1

bit.ly/chkdep2

bit.ly/chkdep3

Do not provide too much detail here that may identify you or your landlord, use the forum.

In order to maintain your privacy I suggest you register with the Landlord forum link at the top of the page or use this link

landlordforumproject.co.uk

Once you have registered you will be sent an email to validate your registration, click that link and log into the forum, you may then send me a Private Message from the link below:

bit.ly/davidpip

When I reply your messages in the forum you will get a copy in your email but you MUST reply via the forum, if you reply via your email client I will NOT get the message. Once you login it should be self explanatory.

I will than gather some details and draft you a letter to send to your Landlord.

@David

Thank you so much for your help David! I just followed your advice and sent you my Details in the Forum.

Laving aside the ethics of advertising a property you don't own and which you have no intention of actually letting out, I'm not sure that a handful of initial inquiries on the basis of a free advertisement is evidence that a landlord can get a tenant of equal quality to the existing one for no cost whatsoever.

Having said that, the cost of a new tenant is one that the landlord would have to bear at the end of six months anyway so, assuming reasonable notice is given, it is not reasonable to charge more than a pro rata fraction of any reasonable total.

@Gina 120

You have not included what you believe to be the break clause, so I cannot advise on whether or not you appear to have complied with it.

In general, a tenant cannot terminate before the end of the fixed term, except
a) in accordance with a break clause in the agreement, or
b) with the agreement of the landlord, on whatever mutually-agreeable terms they can reach.

Contrary to what David @181 says, I believe that a landlord is not legally required to mitigate loss by finding a new tenant (I believe there was a court judgement on this, but I do not have it at my fingertips), so the tenant is obliged to pay to the end of the term unless agreement is reached with the landlord.

The £500 sounds excessive, particularly as it includes "voids" but you have also been told you will have to pay until a replacement is found. I would suggest challenging it as unfair (but seek advice from Citizens' Advice or Shelter).

Remember that if the landlord used an agent to introduce you, then he will have paid an amount that reflects the expectation of receiving rent for 6 months, so if you leave early there is that cost to recover.
Also the fact (alluded to @181) that tenants can be found for free on OpenRent does not imply that there is no loss. Personally I use an agent that I trust to find me tenants and do all the leg work and legal paperwork etc. and that costs me 1 month's rent (I self-manage thereafter, so no additional cost to me, but there may be additional cost to a landlord that uses a full-management service). It is reasonable for a landlord to pay a professional to ensure that all his legal obligations are fulfilled because of the severe penalties if they are not.

You have not said if this is a joint tenancy or a sole tenancy.
If a joint tenancy, then ALL the joint tenants have to agree to end a tenancy early, including exercising a break clause.

The need to mitigate a loss arises for other breaches of covenant, but not in the case of arrears of rent: Reichman & Anor. v Beveridge & Anor. [2006] EWCA Civ 1659.

@Gina

I have got your message and will be sending you through the documentation and draft letter.

You can safely ignore MdeB who likes to argue all the time, in simple terms, he is wrong.

@David 186

I don't like to argue; I like to get to the correct answer with evidence.

Would you explain why Reichman & Anor. v Beveridge & Anor does not apply?

@Gina

When you have done whatever you decide to do, would you post back here describing what you did and how it turned out?

I like to learn.

@MdeB
I will think about that, but by now I am sorry to tell you that I think I won't.
You know such a situation can be really stressful and also causes me neck pain and other several health issues. I simply felt the feeling of there happens something unfair to me and even if I tried to solve it in a polite way with my landlord, I got beaten again. David gave me strength and the feeling, that I can fight that. There is someone on my side carrying even if he do not have to do that. But your post is just another beat. While writing your post, did you ask yourself how I will feel after reading that?
That it could make me feel helpless?
I am writing here, because I am looking for help and advice. If you want to argue about if things David says are right or not, please send him a PM. Because if you would have had the intension to help me, you would have formulated things different. Sensitive. And if you want to help people, please do not just say what is right and wrong. Give advice what is possible to do instead or where to go to get help. You were basically negative.

Every person is responsible with their words and acts they do to other people and what those does to that people. You can do good or bad. no matter you intended that or not there will always be a reaction. Please keep that in mind for your next posts. Thank you.

@Gina.

You asked:
"What is the legal side on this? can I e. g. terminate to the 12th of a month in an early termination? Do I still have to pay when there is no new tenant until the 6 months are fullfilled? Can they charge me the 500 Pounds or is that unfair?".

I responded objectively to that. If you consider that to be negative or "a beat", then that is your prerogative.

I also pointed out that you had provided insufficient information to provide reasonable guidance.

I wish you a good life.

@David

You have not stated why you believe Reichman & Anor. v Beveridge & Anor does not apply

Giles Peaker, an experienced housing lawyer, states that it does apply at https://nearlylegal.co.uk/2015/11/on-having-a-petard-and-being-hoist-by-it/

Do you have an example of its application to an AST? The fact that the Toogood case foundered for a different reason implies as much but it would be handy if there was something a bit more clear-cut in the case law somewhere.

@MdeB

I am not here to debate law or my tactics and strategies.

I am here to help real people with real problems; both Landlord and Tenant alike, I do not make a comment without knowing why it makes sense for BOTH parties.

I know Giles and as always everything in that article is right on the button, especially the impact of the Artworld case, but there are other considerations.

The case law you quote is about two businesses and whilst it will do if nothing else is around. It would only take one poorly funded tenant to appeal to get a better decision as consumers have way more protection than the firm of Solicitors in the case you quote. So if a Landlord insists, the Tenant can appeal higher and higher, that is how we got all the decisions we depend on today.

My advice to a Landlord is surrender the property and be reasonable, if you are too draconian you will encourage a tenant to sublet and trust me that is a way worse situation. In fact I can only see downsides for Landlords who try to insist on enforcing their rights too strictly.

I would urge any Landlord in this position to read the following post.

https://www.propertyinvestmentproject.co.uk/blog/your-tenant-wants-leave-early/

With regard to case law, we rely on many many consumer cases, it will always depend on the Judge you get on the day. We are able to argue that the case you quoted does not apply and have got decisions at a County Court level where the Judge has said to Counsel if your client wants to appeal they are welcome to. In our experience they don't because the costs just spiral.

Are they technically in the wrong, possibly yes, but some do not care, some seem to want the clarification.

When it is your turn and you have that tenant that for whatever reason wants to end their contract early, you can then decide if you want to spend £50k+ in legal fees to try and establish whether this applies to consumers.

As far as I am concerned it does not, you will of course disagree but that is your prerogative.

I am sure you will tell your tenants that they have to honour the contract to the end but they do not. You do need to mitigate your loss and do all that is necessary to keep the costs you intend to pass on to a minimum, you are also only allowed to pass on your actual charges, regardless of what your contract says.

I always encourage both parties to reach a reasonable settlement.

https://www.landlordlawblog.co.uk/2018/05/15/problems-facing-tenants-wanting-leave-tenancy-early/

Two prominent legally qualified housing law experts, Tessa and Giles, both saying landlords don't have to mitigate loses.

Against an anonymous billy bullshitter making unsubstantiated claims.

Who to believe?

Curses! I never thought the moderator police would see through my cunning alias so quickly.

My swearing about that twat must have given the game away!

I'll have to give some deep thought for a new, impenetrable disguise that no one will ever suspect..

@David

Thank you for explaining your position; it gives context to your comments.

Your approach appears to be to attempt to bully the landlord into not pursuing legal remedy, or if he does, then hoping that he is unrepresented or you get a sympathetic judge.

Nothing wrong with that, but you should be clear in your posts that what you are advocating is an approach aimed at getting what someone wants rather than a statement of the law as it stands.

I quite agree that in general landlords are best served by having a tenant that wants to be there and is paying them what is owed.

However, tenants have freely entered into a contract to pay for the term, and landlords should not be out of pocket because the tenant decides, for whatever reason, that they cannot, or do not want to, honour the contract.

I presume that you are legally qualified and registered to provide advocacy.

Ironically, if it were purely a question of contract then, as I understand it, the need to mitigate would apply: the Reichman judgement rests on the fact that a tenancy agreement is governed by property law, rather than contract law. Rent is due at the appointed intervals for the remainder of the tenancy, because the tenant cannot unilaterally end the agreement. Hypothetically, then, does it follow that the tenant, even if no longer resident, still enjoys all the rights to quiet enjoyment etc? In Toogood the landlord undertook major works after the tenants had left, thus ending the tenancy, but would a more minor infraction have been sufficient?

The problem with cases involving residential property is the sums involved are relatively small. £6,000 may not seem trivial to you or me but it could easily be dwarfed by the costs of pursuing a court action anywhere other than the small claims track. (Given that costs weren't awarded in Toogood I doubt either side came away much better off financially.) Thus we're left with the sort of out-of-court/edge-of-court realpolitik that David seems to specialise in.

Hi

Nice article.

We rented a property for 9 months contract. We had to move out of the house due to personal reasons in 4 months. Contacted landlord and he was not ready to let out the property and wanted us to pay the break clause. We paid rent and settled bills including council tax for rest 5 months. Now without informing us landlord has let aggreed the property. Is it legal ?

@Radhika

I am guessing your English is not that good, so my reply is based on what sense I can make of your post.

1. You gave notice to quit at 4 months into a 9 month tenancy

2. Your Landlord declined to release you

3. You did not have to pay the rent for the 5 months, the Landlord has to mitigate your loss

4. Now I assume you have seen a sign saying "let agreed" but you do not know when the new tenant takes occupancy.

Do not know what you mean by "pay the break clause" because a break clause just says WHEN you can go.

If you paid the 5 months then you have the right to stay in the property, if you have not left then they can't evict you

To be clear, in UK you cannot be evicted without a Court Order, if you remain in a property after your tenancy expires then a new tenancy is created in Law called a Statutory Periodic Tenancy.

So it will depend on whether you have possession.

If nobody has gone in and you no longer have keys but have the tenancy agreement valid for beyond now, you could get a locksmith to get you in and change locks.

There is nothing really illegal, it is more like your landlord had terms which were unfair contract terms and so invalid, but they need to be challenged in a Court.

Did your Landlord take a deposit and did they protect that deposit?

Hi David ,

Thanks for your reply.

I am not a native English speaking person.

Yes I gave notice to quit at 4 month of a 9 months tenancy. My landlord was not interested in letting property for rent for rest of 5 months(until August 2019). He wanted us to pay rest 5 months rent and bills before moving out, as per contract. We did so. We are out of that property now.

Yes deposit was protected and its sorted.

Landlord has let aggreed the property now. Do I have a right to ask for my money back ? I don't want to go back to the house.

@Radhika

I assume that it is an agent that has put up a board but as I said before you need to find out when the new tenant moves in (or moved in.

Some people might ring the agent, but I would go have a look at the property first, if anyone is in there, introduce yourself, get their name, then ask if they have had any post, them casually ask them when they moved in. If nobody has moved in yet you could try asking the agent saying you viewed it and noticed the sign and ask if it is definite, have they signed agreement, when do they move in. Ask as if you were interested in letting.

As I said legal rights need to be enforced in a Court but the best approach is to give him a letter of claim saying that if he does not settle you will seek damages in the County Court.

I can help you with a letter to him WHEN YOU HAVE THE FACTS, I would also need to see the agreement.

I suggest you contact me directly via the forum of this site.

Click the Landlord forum link at top of this page or go to this link

https://www.landlordforumproject.co.uk

Join that forum

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Then go to the link below to private message me

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Hello,

I'd appreciate any guidance and advice on my current situation.

I rent a flat with another flatmate in an AST as joint tenants. The term of the tenancy is 12 months, started on the 7th of January 2019 and ending on the 6th of January 2020. We have a Break clause with a minimum of two months written notice served on or after day one of the fifth month of the initial term. We split rent and bills 50% 50%.

As an FYI I lived in another joint tenancy with this person last year in a house.

Her behaviour has become extremely erratic in the last 5 months and sometimes I have a lot of concerns for my safety and hers because she brings strange men in the house, tends to occupy a lot of the shared space in the flat (more than her actual room), doesn't lock the door, forgets to turn off the oven and makes a lot of noise. Throughout our tenancy, I have expressed my concerns and discomfort to her about her attitude and have also told her to be more mindful of the shared space in the house and to the guests or men she is bringing, respectively not to occupy the whole flat with them as we are only 2 people on the contract and it is not fair and acceptable to me to pay water, electricity and heat bills for her guests. And of course the noise and loud music. But she continuously disregards my opinions and does not care we have the equal rights in the flat.

The last argument we had in March was about "guests" she brought to the flat and told me that there would be loud noise during their visit and I should cope with it. I told her again that she should entertain her guests in her room and not restrict the shared space in the house. She then literally told me to either accept this or leave the flat. Of course I didn't do that because I repeated to her that we clearly have equal rights in the property and she cannot just throw me out whenever she feels like it, especially at night for 6 hours when she brings guys home. Note: I checked my tenancy agreement and there are no clear rules and definitions for guests, visitors, how long they should stay etc. Her guests usually stay from 1 day to 3-4 days a week. And when I am not in the flat (on a business trip or holidays etc), I know they stay even longer.

Beginning of April I decided to leave the property for a few weeks and go back to my home country for holidays and work remotely. I decided to inform the letting agency that I would not be at the property for said period of time, but did not disclose to them any ongoing issues with the flatmate.

I have discussed twice with my flatmate the break clause and she has agreed verbally and in writing to break the tenancy in May, however she has said often that she has money problems and might change her mind regarding the termination. To break the tenancy agreement, we are both required to serve notice, my notice will not suffice. Additionally, the Termination clause itself states that in order to terminate the contract, they need written notice from the both of us which in my opinion is not fair. This actually happened with the other tenancy where the agency said they couldn't consider only one notice, but in that case we both served notice and left after the initial 12 month term to move into the new home. Does this imply that if she wants to remain and I want to leave, I just can't leave the tenancy and I'm stuck with somebody who does not want to accept that we are both equal on the contract? I've read on the internet that in the case of joint tenancies, agencies or landlords expect us to solve our own problems, but the only solution to this problem is breaking the tenancy and renting separately. Should I involve the agency and tell them about these recurring issues and ask them to take action? I wouldn't mind being taken off the agreement as long as I recover my share of the deposit, but if I leave I doubt she'd return the money to me immediately because of her money issues - the tenancy agreement clearly states that if one tenant leaves, the other must pay him back the share of the deposit. I do not think this situation is fair because if she find a new tenant, that person will be living there on my deposit money and if they continue renting there for 2 years, does that mean I will see the deposit in my account in 2 years time?

The deposit is protected in accordance with the Compulsory Tenancy Deposit Protection
Scheme provisions of the Housing Act 2004

Please let me know your thoughts.

@Alex

I would need to see the contract but usually you are jointly and severally liable for the performance of the contract.

I strongly recommend that tenants seek a separate AST, I have seen so many cases where one or more tenants turns out to be inconsiderate/unstable/rude/untidy/offensive strike out as appropriate.

It is possible that some terms might be legally considered unfair contract terms.

Most Landlords want an easy life, some agents will give you all kinds of BS because they cannot be bothered.

It is a shame that you have not kept the agent informed as it would create an audit trail or at least send emails to the other tenant of your concerns.

Again I would have to read the contract, but it will terminate at the end of the 12 months, you may have obligations to inform the Landlord/Agent of your intention not to renew. If the other tenant remains in the property she will have a Statutory Periodic Tenancy created in Law but you are not bound by that.

Nobody want to be the referee in petty arguments, there may be terms in the contract that can be used and of course if they are doing anything illegal activity such as taking drugs, then reporting that on 101 might add strength to your position. You did not say whether your bedroom has a lock, I would be concerned to leave the property to these strangers if I were away.

Regardless of what the tenancy says, it is your Landlord who is responsible for the return of the deposit, there should have been an inventory at the beginning of the tenancy and I would insist on one when you leave because otherwise you could be held for damage she does to the property.

The Deposit Protection Scheme used should have informed you or the other tenant (usually one is nominated as Lead Tenant) you can make a request for your half of the deposit but the Landlord can object if they have cause which would lead the Deposit Protection Company taking evidence from you both.

I would definitely suggest informing the agent, I might ask them if they would object to you getting a replacement tenant. In student lets this sort of thing happens all the time and the contracts are structured accordingly.

There may well be terms that can be "twisted" to meet your needs, you could for example infer that she is subletting, I had a case a while back where a tenant sublet to 6 other tenants for drugs and alcohol. This created antisocial behaviour, over occupancy and other issues including crime.

If you contact me via the forum (details on post 202) I will be able to look at your tenancy and suggest a way forward.

@Radhika

Did you sign a deed of surrender for the property?
If not, then the tenancy probably continued and if the landlord has re-entered, then you have probably been illegally evicted.

As a general rule (for others who may find themselves in the situation of wishing to surrender a tenancy before the end of the term), if the agreement is that you will pay all cots until the end of the term, then pay them monthly , not as a lump sum. In effect, you continue the tenancy to the end of the term and prevent unscrupulous landlords from double-dipping.

However, it is better to agree financial terms that avoid you needing to pay for the full term. Paying for 2 months (possibly plus agent's tenant-find commission for the remainder of the term) seems a reasonable compromise, as that gives landlord time to find a new tenant.

@David

Thanks for your advice, I've left you a PM, please let me know if you've received it.

What does it mean when the tenancy agreement say 35 month contract with 9 month break clause?

Davies

Based on your limited info, a contract lasting for just under 3 years with an opportunity to leave at or after 9 months.

You need to check the terms surrounding it, for example, there may only be one chance to quit at 9 months or you may quit at any time after the 9 months but subject to the notice required within the contract, perhaps two months.

So you might give notice to quit at 7 months with 2 months notice or it may have terms saying you can't give such a notice until after the 9 months have passed.

Without seeing the agreement one can only speculate.

Hi guys,

I am posted to work in UK for 1 year. In a few days time, I am about to sign a 12 month tenancy contract but I am concerned as things back at home are quite dynamic, especially given the current pandemic. I am especially worried that my company might shorten my posting halfway through and would need me to return home. This would create much complexities if the 12 month tenancy contract does not include a break clause.

Hence, I would like to seek advice on how can a tenant can negotiate for a break clause?
Many thanks in advance.
Cheers!

Randal

@Randal

Suggest to your Landlord than you would prefer an initial 6 month contract to give both sides the flexibility.

Suggest that they have a contractual periodic contract, so that it has a minimum term of 6 months and then does not end until it is terminated with stated notice, which may be 2 months for both sides if defined as such in the contract. So you would need to give notice at 4 months to leave at 6 months.

You could also just ask for a 6 month break clause.

Alternatively just have a 6 month contract and let it become a Statutory Periodic Tenancy by remaining in the property when it expires. This would mean SPT remains until cancelled; tenant has to give 1 month notice while Landlord 2 months.

If you look like a high quality tenant then the Landlord would probably accept the request.

Paying 3 months or 6 months upfront can be persuasive in a competitive market, but do not offer cash.

Numerous Landlords come to me pulling their hair out with dodgy tenants in a contract with no break clauses, they really make sense for all.

Thanks @David! You're always the people's champion!!

I would think that the latter would be more feasible as the landlord specified to the agent that he only wants a minimum of 12 month tenancy contract. I am also inclined to offer him either the 3 or 6 months rent upfront to enable such flexibility. Hope that all would go well.

Just wondering if it would be possible to only put forth the request for a break clause after reading contract or I should take on a more proactive stand to preempt the agent for it? Trying to reduce the lead time and move in to the new place as soon as possible. Airbnb is really burning a huge hole in my pocket.

@Randal

It is a bit like a job, you don't negotiate until they have made the decision to offer you the job.

I would not leave it until the day you sign, I would make sure you speak to the Landlord, I get to see hundreds of emails a week from clients and have seen many where the Agent has not passed on offers from tenants, including pre-payment of rent.

I would pressure them by saying their property is the one you want, but you need a firm date or you will have to take another tenancy, make them jump through hoops, look up Landlord from deed at Land Registry to see if they are contactable via social media et al online.

Then ask agent to confirm you are their first choice and ask for copy of the tenancy agreement, then at last minute say you have hit a blocker, you would feel happier with 6 month tenancy to start, once you are in you will become Statutory Perodic by remaining in property if no new tenancy is signed and you do not leave of own accord.

The agent may want to make £50 by doing a replacement tenancy, but they can't charge you for an SPT as they do not create the tenancy, so decline it just say you want to stay on month to month but no current plans to leave.

Make the advance payment and be ready to pay the rent promptly before the 3 months expires and always a week early so they love you. Keep the place clean and tidy, look after it as if it was your own and any landlord would want you.

Make sure you take video and close up photos of any damages no matter how small, also check the inventory checklist to make sure it shows all damage.

Dear David,

I have an agreement with a break clause of 6 months with notice of 2 months on either side. It has been explicitly explained as well that either party can give a notice of 2 months to vacate after 4 months of the tenancy start date.

My issue is that I had been in the tenancy agreement for last 3 years with each year a new tenancy agreement. I never looked into the agreement in detail as its a good 15 page document. My understanding based on my prior rental agreement that the break in clause is only during the 1st year of rental agreement. Any subsequent renewal of the tenancy will be rolling contract with 2 months notice either side.

The latest renewal contract for the 4th year shows the increase in rent along with the 6 month break clause. I wish to vacate the house after my stay of 4 months i.e. giving the notice post 2 months stay with notice of 2 months.

Can I go back the estate agent stating that it has to be rolling agreement and I missed this and just realised it now. Or legally they the estate agent should have made it as rolling contract with 2 months notice instead of 6 mths break clause. Or it's not an issue legally I am allowed to vacate house anytime serving 2 months notice as I have stayed for 3 years.

Please guide.

@VRT

Strictly speaking you are liable for what you sign and as a compos mentis adult you should be careful what you sign, there are exceptions where a clause may be deemed an unfair contract term if contrary to legislation. I do not see that here unless they explicitly told you the new tenancy was identical in an email or letter.

You are currently in the latest tenancy you signed, if you were unhappy to keep signing contracts (which agents churn out as an income generator but now limited by Tenant Fees Act 2019), then you should have let the tenancy expire and a rolling statutory periodic tenancy would have been created in law with a one month notice obligation.

That being said, you can just give 2 months notice within the minimum period (which is usually only there for a first tenancy and may be worded as such without you realising) and they have to mitigate your loss, as tenants can be found in hours for free on OpenRent and other sites there is no reason for them to not be ready for a new tenant immediately, especially if you give them reasonable access, clean the property in line with the terms of the contract and rectify any damages you have caused - save wear and tear. It would make sense for you to ask them to provide an inspection a month before you leave so they give you time to make any repairs (not decoration unless you have changed colours) before you depart.

So in a nutshell, you can mitigate your loss by giving plenty of notice and providing reasonable access for viewings etc and they can mitigate their loss by pulling their finger out.

It is not a secret that I do not like Agent, most are the walking dead, a very tiny percentage are professional and do not seek to fleece the Landlord and the Tenant, so many are dodgy or just incompetent.

It is always worth checking all paperwork has been done, especially deposit protection which included serving the prescribed information within 30 days. see link below for details

https://www.propertyinvestmentproject.co.uk/blog/i-havent-protected-my-tenants-deposit/

If you want me to look at the tenancy agreements please see post 202 above for how to contact me via the forum.

Dear David,

I have been reading on the comments, and hopefully you can help us with our issue or at least give light on this.

We requested to terminate our agreement, citing break clause stipulated on our contract. (Aside from
Personal Issues/ repairs have not been met and ignored after repeated requests)

7.2 Tenant’s Break Clause
The landlord agrees that the tenant has the right to terminate the tenancy after the first TEN MONTHS by giving the landlord no less than TWO MONTHS notice to be served by first class post or hand delivery to the address specified in clause 5.1 of the schedule 3 of the Agreement to end the Tenancy. The notice must be served prior to the date upon which it takes effect but can not take effect earlier than 24th of March 2022 and cannot expire any earlier than 23rd of May 2022. The notice must expire at the end of the relevant period, being the TWENTY THIRD DAY of the month. When the notice period expires, the AGREEMENT shall cease. This does not affect the right of either the Landlord or the Tenant to pursue their legal remedies against other for any existing breach of any rights under the Agreement.

From what our understanding of the break clause, we can end our tenancy earlier (12months) after the 10th Month, as stated (in between March 24-May 24. However the agent is insisting that we have to shoulder £1870 set up fee for ending the contract early, stating that we have agreed for a 12month fixed contract. This is more than out month’s rent which is £1095.00. We are also puzzled with this fee as the contract states a break clause, although they are insisting that it is just a Period of Notice. Why include a break clause in the contract, when it is only notice period in disguise? We have been in good terms with the landlord for more than 3 years, and in good faith we thought that he will be happy to grant this as we would want to move on and start a family (originally 2 male occupants and both got married).

Is it fair to shoulder the £1870 fees even if the contract states there is break clause?

We can help them in looking for a replacement (which the agent is requiring) but that is out of good will and we should not be required/ made liable to look for replacements.

I do hope you would help us in this predicament as £1870 is a big amount for all of us, despite following the timeline as the contract states.

Thank you in advance.

@Michelle

I would not give advice only on seeing a snippet of your Tenancy agreement but not only would such terms be deemed unfair contract terms because they are against common law, consumer rights legislation and the Tenant Fees Act 2019 but they breach a fundamental obligation of anyone seeking redress, which is to mitigate your loss.

In the old days Landlords and bad Agents could drag out replacing a tenant to a month, but these days you can put an ad on OpenRent, get it syndicated to Zoopla and Rightmove so getting 20 suitable tenants knocking at your door. So in this context the Landlord/Agent must work as fast as possible to reduce any cost to you, they must advertise as soon as possible, you will do viewings and do your clean so there is the smallest void.

Consumer law and the Tenant Fees Act both say they can only charge their actual loss, if they take this opportunity to increase their rent, they will suffer no loss, so keep an eye on that, ask the people viewing.

In order to give themselves evidence of no loss or void, I have had some clients who when facing an Agent who was not receptive, advertised the property, created a shortlist of really strong tenants, got the tenants to get their own tenant referencing so to avoid the prohibited fees of Tenant Fees Act and presented the Agent with the shortlist for them to interview. Then when the Agent tried to say they wanted to do it themselves the DPS was presented with the occupations, salaries and tenant references so dismissed claims on the deposit.

Speaking generically about a Tenancy that Starts on January 1 2022 that has a break clause at 12 months which requires 2 months’ notice, you would leave on December 31st 2022 having written to invoke the break clause on or before the 31st October

Remember it does not matter what terms are put in the Tenancy agreement if they are contrary to common law they are deemed as unfair contract terms.

They can be fined between £5k and £30k but unlike some legislation like deposit protection, you do not get the money.

It is worth checking they PROPERLY complied with all the deposit protection legislation because there does seem to be a pattern in "entitled rogues" failing to comply. Do not post here about that, contact me via the forum and I can check.

If you want me to look at the tenancy agreement and help you inform the agent/landlord of the law, please see post 202 above for how to contact me via the forum.

Dear David,

Thank you for your response. I have messaged you via Forum.

Everyone of us is just disappointed and surprised with the fees they are charging us. What is the point of a break clause- as defined that you can end your contract earlier within a certain timeframe if it will just serve as a notice. We have notified first week of January and wishes to vacate the property (along with deep cleaning etc) on the 27th of March. Break clause is in between March 24- May 23. Clearly falling within the break clause period, and more than two month’s notice. Is it acceptable that they are charging us £1870 which they can not back up or give evidence or at least the breakdown for the fee?

What is an acceptable and fair penalty/ or charge for tenants of we wish to end tenancy within the break clause period?

@Fishface

Just to be clear, there can be no fee for exercising a right within the contract unless it falls within the legislation of the Tenant Fees, Consumer Rights and Consumer Contracts Law.

These are extremely tight and I have never seen one where you exercise a right but pay a fee for doing so, I have seen thousands of Tenancy agreements.

There is no loss for exercising a break clause, it is part of the agreement.

When mentioning potential costs in my previous costs it was in the event of a breach of the terms, but as I said, it has to be an actual loss suffered and the duty to mitigate comes in.

Neither the Landlord nor the Agent are the boss of you not decision maker.

I often see template agreements where Landlords or Agents put terms in thinking they can hold the tenant liable for the made up terms.

For example one Landlord had a term that said if rent was ever a day late they could charge £65 plus interest at 8% a MONTH, they also said they could evict with 3 days’ notice.

We had a lot of fun, the Tenant continued to pay their rent and rejected various evictions notices and fees, they got £750 when the Landlord did not turn up at Court because they pulled out without telling the tenant.

It then took them 16 months to issue a proper Section 21, that Tenant believed all the vile terms the Landlord's wife had added. They even came banging on the tenants door to try and intimidate them into leaving.

I would strongly advise any Landlord reading this who has edited their Tenancy agreement to only get changes done by a Solicitor and ideally one with with a Housing Department.

Some Landlords complain about legislation but it has only come about because of terrible practice.

The legislation has gone back and forth but I think the Balance is about right now, professional Landlords know what they have to do and most do it.

You will not be paying anything. I will check the forum and we can continue from there.

Hello

I'm looking to let a property for six months only. Is going for a 6 month AST better than 12 month AST with a 6 month break clause?

I've been told that a break clause with 2 months notice means that the earliest the tenant could leave is 7 months but I don't know if that means day 1 of the 7 month or the last day?

Thanks

@Tommy

Why on earth would you give a Tenant the expectation of a 12 month tenancy when you only intend to offer six months, it is just asking for trouble.

Forget break clauses and forget 12 month Tenancies.

The fact of the matter is that even if you offer a 6 month tenancy if the tenant remains in the property after the six months you have to evict them via a Court if they do not leave of their own accord. No AST tenant may be evicted without a Court Order.

I would advise you offer a 6 month tenancy and issue a valid Section 21 notice (form 6a on .GOV website) at 4 months to expire at least 2 months and a day thereafter. Also download the latest Form 6a notes so you can see all the reasons a Section 21 might be invalid and make sure you have all boxes ticked, ideally with the Tenant signing a copy of each requirement.

The Section 21 process is an accelerated procedure so if they do not leave you will be able to take them to Court immediately after the expiry of the S21.

Needless to say strict Tenant Referencing will be important and even a guarantor.

Hello David, Please may I clarify something that I’m struggling to understand about break clauses. If you have a 2 month break clause with one months notice, is the one months notice *inclusive* within the 2 month break clause? For example, if you have a 2 month break clause and you decide after one month of being in the property you wish to leave, can you give one months notice after one month and leave by the 2nd month? Or do you have to stay a minimum of 2 months and then carry out one month notice period, therefore leaving at 3 months? Thank you, Immie

Hi Immie

A break clause is usually a clause to allow a Landlord or Tenant to agree to end the Tenancy earlier than the term stated.

It is very unusual to have a break clause at two months, it might be that you are quoting shorter periods because you have a Lodger Agreement rather than an Assured Shorthold Tenancy, these are very different things.

A break clause does not usually stand alone, there are usually termination clauses elsewhere in the contract that say what notice has to be given to end the tenancy. So it is really going to depend on what those terms say.

The truth of the matter is that many terms are very hard to enforce, a Landlord can't really hold you to the end of the contract, but only for the time it takes to get new Tenants. As new Tenants can be found in minutes and tenant referencing done in hours there is little excuse for a void as long as you give a month's notice and allow viewings.

A Landlord has to mitigate your loss if they are going to hold you responsible for paying something they can affect. So if they do not act promptly you can dispute charges.

Also note that charges cannot be made up, they have to show actual loss, most fees are banned by the Tenant Fees Act 2019.

You sound like you are confusing a break clause with a notice clause, a break clause would usually be on an anniversary, for example 6 months into a 1 year contract or 1 year into a 2 year contract. There is no hard and fast rule but what the parties agree.

Usually the break clause will express in the wording what the terms are, they may say that a Tenant has to inform the Landlord BY X date that they are invoking the break clause but some say that a Tenant can exercise a break clause AFTER a given date. They may say that in the event that they want to avail themselves of the break clause then termination clauses apply as they are written in clause n.nn.

It is hard to hold someone to two months notice at the best of times. If a tenancy is too onerous it can defeat the intention and a Tenant might as well just give a months notice and help the Landlord replace them as a Tenant. Remember that a clause that is written in a contract does NOT override common law, so consumer law says you can't be charged for losses they did not actually suffer and the Tenant Fees Act limits what fees can be charged.

Agents are the worst at abusing fees and charges,

If you want me to take a look a your actual agreement then I suggest you use the instructions in post 202 above to contact me privately via the forum.