Pls help - leaving early when landlord has given notice?

gauly

Just read your reply tbs624 and that sounds closer to what I understood.

tbs624

Planner wrote: »

Originally Posted by gauly
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.

Planner - see my 2nd post above. Like you, my brief glance at that break clause within Helen's first post led me to view it as the LL being able to invoke it at an appropriate point *after* four months but looking again, I think it could be construed either way. It clearly refers to giving the 2 months notice four months after the commencement of the tenancy(as in "at 4 months") but then refers to notice running from "next rent due" dates?

helenahippo wrote: »

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.".

If Helen returns perhaps she can clarify what form the LA/LLs notice to her took - ie, whether it was in writing and whether they were trying to invoke the break clause or trying to use Ground 1.

Its Saturday evening -more wine please.;)

tbs624

gauly wrote: »

"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.

Hasn't become periodic.Let's wait & see if H returns to clarify things a tad.

Planner

gauly wrote: »

"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.

In your example the landlord can invoke the breakclause after six months with one weeks notice, the tenants must give 5 years notice - an obvious imbalance.

In the O/P break clause the Landlord can serve 2 months notice after four months and the tenants can also serve two months notice after four months - I therefore fail to see the inbalance as both the terms for the landlord and terms for the tenant are identical.

The O/P has been clear they have signed a 12 month fixed term, I am therefore unsure why you keep refering to it as a rolling (periodic) contract. Can you explain?

The amount of notice the tenant has to give hasnt been 'doubled' its actually gone from not having the ability AT ALL to end the fixed term, to being able to end it with just two months notice.

Im afraid I cant see the confusion. At any time after four months the tenant or landlord can serve two months notice before the next rent due date (for exmple the 15th). The two calander months notice period then commences on the 15th and the tenant moves out two rent periods after that.

gauly

Planner wrote: »

In the O/P breask clause the Landlord can serve 2 months notice after four months and the tenants can also serve notice after two months - I therefore fail to see the inbalance as both the terms for the landlord and terms for the tenant are identical.

The O/P has been clear they have signed a 12 month fixed term, I am therefore unsure why you keep refering to it as a rolling (periodic) contract. Can you explain?

It sound like from what tbs624 says this contact probably has a fixed break point rather than a rolling one so this conversation is about a theoretical contract that allows the landlord to give notice any month in after the first four months.

I know it's called a fixed contract, but the last six months are exactly like a rolling contract - the contract can be terminated at any time. For the landlord it's exactly like a rolling contract - they can end it with two months notice. For the tenant it's rubbish because they have to give two months notice instead of one. That's my point: the terms should not be identical. The tenant normally has the right to give half the notice that the landlord does and this theoretical contract does not allow that. The tenant would be better off with a six month fixed contract and then going onto a periodic contract.

Anyway, I've had a look around on the internet and it does seem common to have these rolling break clauses after six months (and usually worded better than this one). I guess they are legal but I think they shouldn't be. I'm going to leave it there because I do now believe you that it's legal and I don't want to drift too far off from the opening topic. Thanks for all the interesting replies.

Planner

gauly wrote: »

I know it's called a fixed contract, but the last six months are exactly like a rolling contract

Apart from its for six months rather than one month, the tenant cannot end it by giving one months notice and the landlord cannot end it by serving a section 21 notice.

However, I would agree that they both contain the word 'contract', but thats definatley where the similarity ends.

If tbs624 is correct and its a fixed break point that can only be implimented at the 4 month stage rather than at anytime after four months, then this still doesnt support your argument, as neither party can now break the contract with any period of notice and must wait until August 2009.

gauly

"At any time after four months the tenant or landlord can serve two months notice before the next rent due date"

"the tenant cannot end it by giving two months notice and the landlord cannot end it by serving a section 21 notice"

??

Planner

gauly wrote: »

"At any time after four months the tenant or landlord can serve two months notice before the next rent due date"

"the tenant cannot end it by giving two months notice and the landlord cannot end it by serving a section 21 notice"

??

Should read "the tenant cannot end it by giving one months notice and the landlord cannot end it by serving a section 21 notice"

Corrected on post above.

clucky69

Under any tenancy agreement, whether contractual or even verbal, in the cases where money has changed hands for rental payments, if this can be proved (rent statements, reciepts even bank statements), then the landlord HAS to give 2 months notice and even then the tenant doesnt have to leave until the landlord has gained a possession order from the court. I know this wasnt the original question but im just saying in response to some of the later posts. Maybe i should listen to my signature quote lol.

franklee

It's tricky to write a break clause that stands up. In the OP's case the break clause is ambiguous as it can be read in more than one way as has been pointed out. I think on that basis the tenant could argue that the opportunity to break was missed. I think that as the consumer any ambiguity would be taken to be in favour of the tenant, as after all it is the landlord's contract.

Also as pointed out already the tenant can argue that if they are not allowed to leave early without penalty then they will have to stay put until they find another suitable house and thus will be leaving late and the landlord will not be able to move in on time and will have to take court action to remove the tenant.

Both these points should mean the landlord backing down but then the tenant should get it confirmed in writing that the landlord agrees to rent being paid up to the agreed date. Otherwise the tenant will be facing action to recover the extra rent after she has moved.

helenahippo, Put the above points to the landlord including the points you made about the cost and inconvenience to you of having to move. Hopefully the landlord will see sense. If not I'd stay put and let the landlord have his dates messed up.