Pls help - leaving early when landlord has given notice?

helenahippo

Me and my fiancee are renting a house. We have been there since August 2007, the 12 month contract was renewed in August 2008.

The letting agency has now let us know that the landlord wants to move back into the house, and has given us two months notice, and we have to move out by 28th of April.

The agency has not provided us with any help finding new accomodation even though we asked them.

We have now found another place, it is available immediately and we have therefore said that we will move in by the end of March.

When we informed the agency, they said that we would still be liable for the rent until 28th of April.

The contract reads: "The landlord or tenant may terminate this tenancy prior to its expiry by giving not less than two calendar months notice four months after the commencement of the tenancy to be served in writing prior to the next rent due date for the avoidance of doubt notice will run from the next rent due date."

Is it legal - and fair - to ask us to pay the rent up until the exact day when THEY want us to move? We don't really want to move, but now that we have found somewhere we think they could compromise a bit, since we have been good and reliable tenants for a long time.

The agency said they had asked the landlord, and been given the reply that "they need the money as they are having financial difficulties". So are we!! - we have to spend hundreds of pounds moving house and paying deposits, and one of us has been made redundant...

Where do we stand legally? We were prepared to offer one month notice from our side, but we don't know what our obligation is in this situation. Obviously it would be different if we were the ones giving the landlord the notice, in which case we wouldn't mind paying the full two months...

silvercar

As you entered another 12 month fixed term you are obliged to give the 2 months notice specified in your contract.

If you feel hard done by you could tell the letting agent that you will only allow viewings after you have moved out. The landlord cannot relet the property while you are still a tenant, so a new tenant would have to wait until 29 April or the landlord would have to refund some of the rent.

anotherpaul_2

silvercar wrote: »

If you feel hard done by you could tell the letting agent that you will only allow viewings after you have moved out. The landlord cannot relet the property while you are still a tenant, so a new tenant would have to wait until 29 April or the landlord would have to refund some of the rent.

If they landlord wants to move in, that's not going to give the OP any leaverage.

Unfortunately, OP, if the contract says 2 months notice you're responsible for the rent during that period unless the landlord agrees otherwise. Since the 29th April is already within two months, you can't give notice to leave earlier then they have requested. I'd suggest finding a new place that will let you move in late April (or negotiate on the place you have found).

helenahippo

Thanks silvercar! Unfortunately the landlord is moving back into the house (they have lived abroad for years and we were told they were not planning on coming back), so not allowing viewings is not something that will make a difference in this case.

We have always paid full rent when we have been the ones to give notice... but this one seems a bit unfair! How lucky would we have to be to find our dream house available on the same day as the landlord wants the house back? Why should we be penalised when we are not the ones using the break clause? We are anticipating high costs for the actual move itself i e removal company... that´s bad enough... our rent is over £900

Can anyone think of a solution?

helenahippo

Thanks paul! They gave us notice before the 28th of Feb, and we told them we were moving early on the 11th of March. We wouldn't mind giving them one month i e pay until the 11th of April, but I still thinks it's unfair to expect to stay until the exact day.

We have already found the house we want, and since we are moving to a different area we will both be job hunting, which means that we are lucky to get someone to agree to letting a house to us in the first place! Negotiating is not really an option...

gauly

I think some of the previous advice might be wrong. I believe there are only two types of rental contract you can have: a fixed term contract where the landlord can only ask you to leave at the end of the tenancy (with two months notice) or a rolling contact where the landlord has to give you two months notice and you only have to give one month.

A contract which takes away your legal right to only give one month notice would surely not be legal. However, it's now too late for you to give one month's notice - presuming that your rent date is the 28th?

It might be worth seeing CAB or Shelter for some advice - I suspect that if they are incompetant enough to give you an illegal contract then they have probably messed up the eviction process!

tbs624

gauly wrote: »

I think some of the previous advice might be wrong. I believe there are only two types of rental contract you can have: a fixed term contract where the landlord can only ask you to leave at the end of the tenancy (with two months notice) or a rolling contact where the landlord has to give you two months notice and you only have to give one month.

I think you have misunderstood the situation

gauly wrote: »

A contract which takes away your legal right to only give one month notice would surely not be legal. However, it's now too late for you to give one month's notice - presuming that your rent date is the 28th?

The OP has said that the 12 month contract was renewed in August 2008. From the sound of it, what the LL is invoking is a standard break clause within that 12 month Fixed Term. Two months is standard within break clauses.

Within a Fixed Term a T may not simply give one month's notice, without being required to pay the balance of their rent ( unless a new T can be found, and the T covers the LL's reasonable costs involved) After expiry of a Fixed Term ,if a T has not moved out then a tenancy falls under statutory provision and becomes a Periodic Agreement, then a LL has to give the T two months, and the T has to give the LL one month.

gauly wrote: »

It might be worth seeing CAB or Shelter for some advice - I suspect that if they are incompetant enough to give you an illegal contract then they have probably messed up the eviction process!

Good suggestion to seek specific advice, esp. from Shelter, but bear in mind that even if one clause of a contract were contrary to the law it does not follow that the whole contract becomes "illegal".

However, Helenahippo, IMO your LLs/LAs are being foolish - they have invoked their own break clause, but there is always the risk that a T may refuse to go on expiry of the two month notice period, necessitating application to the court.

Most LLs wanting to move back into their own property would be pleased to know that the T was definitely going, albeit earlier than the LL would have preferred. Suggest to the LA that should you lose this property, there is no guarantee that you will be able to find a suitable alternative by April 28th, so cannot guarantee being able to move from your current home on that date.

If the LLs are having “financial difficulties” then they won’t want to run the risk of finding somewhere else to live whilst pursuing you to court to regain possession of the property. The LA will also be seeking to squeeze every last drop of commission out of your tenancy, so it won’t be entirely down to the LL. They may decide that they can, after all, "meet you halfway"

Shelter can be contacted on 0808 800 4444 (7 days,8-8) if you want clarification of the legalities.

gauly

tbs624 wrote: »

I think you have misunderstood the situation

The OP has said that the 12 month contract was renewed in August 2008. From the sound of it, what the LL is invoking is a standard break clause within that 12 month Fixed Term. Two months is standard within break clauses.

I am confused I must admit! I thought a break clause would generally have the effect of turning a 12 month fixed contract into two six month fixed contracts? Six months after August would be January (not April)!

This contact seems to attempt to convert a 12 month fixed contract into a 6 month fixed contract followed by a rolling contact but one which gives the tenant less rights than he should have by law, ie he has to give two months notice instead of one month. Is that really legal?

So, if thats legal then what's to stop me making a contact like this for my theoretical tenants: It's a ten year contract and after the first six months I can give one weeks notice to get rid of the tenants and they have to give me 5 years. Surely thats not allowed?

Anyway, I thought maybe the OP could get to stay the whole year till August if the break clause has been messed up.

Planner

gauly wrote: »

I am confused I must admit! I thought a break clause would generally have the effect of turning a 12 month fixed contract into two six month fixed contracts? Six months after August would be January (not April)! - No. It has the effect of bringing the tenancy to an end before the contractural end of the fixed term. This could be after six months, after seven months after eight months etc etc.

This contact seems to attempt to convert a 12 month fixed contract into a 6 month fixed contract followed by a rolling contact but one which gives the tenant less rights than he should have by law, ie he has to give two months notice instead of one month. Is that really legal? - Break clauses are quite common. This one is pretty straight forward (and quite well worded). It allows either the landlord or the tenant to end the contract after four months by serving two full calander months notice. Im not sure why you think it reduces the tenants rights? It actually gives them the right to end the fixed term much earlier than they would otherwise be able to do?

So, if thats legal then what's to stop me making a contact like this for my theoretical tenants: It's a ten year contract and after the first six months I can give one weeks notice to get rid of the tenants and they have to give me 5 years. Surely thats not allowed? - Your right, that wouldnt be allowed as the breakclause is obviously completley unbalanced in the landlords favour in your example, which isnt the case here as both landlord or tenant could have invoked the break clause after four months with 2 months notice.

Anyway, I thought maybe the OP could get to stay the whole year till August if the break clause has been messed up. - No its spot on.

I would echo tbs624 sentiments that you are a little confused.

tbs624

gauly wrote: »

I am confused I must admit! I thought a break clause would generally have the effect of turning a 12 month fixed contract into two six month fixed contracts? Six months after August would be January (not April)!

It's either over at 6 months ( or wherever the break clause allows) or it proceeds to the full 12 months.

gauly wrote: »

IAnyway, I thought maybe the OP could get to stay the whole year till August if the break clause has been messed up.

You make a good point about the dates for effecting the break clause - I really ought to have read that clause more slowly, so have myself added to the general confusion : the LL does perhaps appear to have missed the relevant timeslot to invoke the break clause. So, looking again, it seems that the LL is trying to use one of the mandatory Grounds - Ground 1 - for seeking repossession, ie that they occupied the property prior to letting it out and now want to return( Housing Act, Schedule 2) and that the OP only mentioned the break clause because of the reference to the 2 month's notice.

Ground 1, however, may not be used within a Fixed Term - see the Housing Act 1988, S7(6)

"The court shall not make an order for possession of a dwelling-house to take effect at a time when it is let on an assured fixed term tenancy unless— (a) the ground for possession is Ground 2 or Ground 8 in Part I of Schedule 2 to this Act or any of the grounds in Part II of that Schedule, other than Ground 9 or Ground 16; and
(b) the terms of the tenancy make provision for it to be brought to an end on the ground in question (whether that provision takes the form of a provision for re-entry, for forfeiture, for determination by notice or otherwise)."

It would appear, Helenahippo, that you have them... if they would like you out early then it looks like they are not in a position to quibble with you over the rent. You could simply remain to the expiry of your Fixed Term (in the absence of any breach on your part that would warrant repossession) or even beyond, if you were so minded. As I said, Shelter can clarify for you.

Housing Act 1988, Schedule 2
Part I Grounds on which Court must order possession

Ground 1

Not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground or the court is of the opinion that it is just and equitable to dispense with the requirement of notice and (in either case)—
(a) at some time before the beginning of the tenancy, the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them occupied the dwelling-house as his only or principal home; or

(b)the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them requires the dwelling-house as his or his spouse’s only or principal home and neither the landlord (or, in the case of joint landlords, any one of them) nor any other person who, as landlord, derived title under the landlord who gave the notice mentioned above acquired the reversion on the tenancy for money or money’s worth.

gauly

"the breakclause is obviously completley unbalanced in the landlords favour in your example"
But isn't it unbalanced in the landlord's favour in the OP's case? Normally he would have the right to give one months notice (on a normal rolling contract which this has effectively become). In this contact the amount of notice he has to give has been doubled with absolutely zero benefit to the tennant. The landlord has to only give two months notice exactly the same as a normal rolling contract. I guess you're right but it doesn't sound fair to me.