Ending tenancy agreement

fp_1974

A quick question, hope I don't go on too much!

I rent a flat out, and for personal reasons I need to move back into it now. The current tenant signed a 12 month contract at the end of August 2008, all the paperwork and intial tenant finding were done by a local letting agent (for a finders fee type thing), although I manage the actual property. Anyway, in the contract there is a "Special or Additional Clause" section at the back. One of the clauses reads:

"Mutual Break Clause
Any time after six months of the initial fixed term of this tenancy (or after a similar period following a fixed term extension to the original tenancy) the landlord may invoke this break clause by providing a minimum of two months written notice to the other (such notice to expire on the last day of a rental period of the tenancy) and the tenant by providing one months written notice to the other. At the end of such notice the tenancy shall end and all obligations and responsibilities shall cease; subject nevertheless to any claim by either party against the other in respect of any breach of any of the terms and conditions of the agreement"

Now, I approached the letting agent who set this up, asking if they could draw up and serve notice on the tenant, however, they came back to me and said that it could only be served on a "mutual basis", that is if both I and the current tenant agree to it. I pointed out the wording in the clause above and said that's not how it sounded, but they stood by their guns and said I can only serve notice if the current tenant is amenable.

My question is, given the wording above - who is right?? Can I serve notice on the tenant before the 12 months are up, or can the tenant only be asked to leave if we both mutually agree to end the contract?

Many thanks in advance for your help and comments.

Gwhiz

Sounds like they are talking out of their !!!!!!!! A break clause is a break clause - for it to be agreeable to both parties you might as well not have it there.

pinkshoes

A MUTUAL break clause is when both agree, so the tenant would have to agree too. Why don't you talk to them and if they won't agree, try and negotiate i.e. offer to pay all their fees for finding a new place.

You'll have to send an S21 before end of June so that you can have the property vacant at the end of August.

Gwhiz

pinkshoes wrote: »

A MUTUAL break clause is when both agree, so the tenant would have to agree too. Why don't you talk to them and if they won't agree, try and negotiate i.e. offer to pay all their fees for finding a new place.

You'll have to send an S21 before end of June so that you can have the property vacant at the end of August.

Ahh.. did not see the word "mutual". Bad me

fp_1974

OK, the way I read it was that "mutual" refers to the situation that either I can break it OR the tenant can break it (I believe just normal "break clauses" can often be one-sided?)

I don't really see the point of having this clause in, if it is truly mutual in the respect you say. I mean surely we can end the contract at any time if we both agree to it - we shouldn't need a special clause to tell us this?

pinkshoes

fp_1974 wrote: »

OK, the way I read it was that "mutual" refers to the situation that either I can break it OR the tenant can break it (I believe just normal "break clauses" can often be one-sided?)

Well that would just be a 6 month contract wouldn't it???

A MUTUAL break refers to both the tenant and landlord wanting out i.e. the tenant hates the property, and the landlord hates the tenant situation!

Why don't you just speak to your tenant and try negotiating with them? Be nice though, otherwise they may be difficult and not move out at the end of August!

franklee

Yet another badly drafted break clause. It's presumably the agent's contract so they should know what it means and have probably explained their version to the tenant anyway which as far as the tenant is concerned is as good as coming from you.

Looking at this practically there are only two months in it so I'd recommend you serve your notice now with the notice period to expire at the end of August (the end of the fixed term) and enclose a written offer to the tenant that should they find somewhere sooner then it's OK with you if they move out anytime between now and the end of August and they can pay rent for the days they are in occupation only, forgetting all this leaving on the last day of a rental period stuff.

This flexibility will be of great help the tenant's move and with a bit of luck they will be gone about the time you wanted anyway. If they dig in then there isn't much you can do till the end of the fixed term when you can start a possession application off.

franklee

fp_1974 wrote: »

OK, the way I read it was that "mutual" refers to the situation that either I can break it OR the tenant can break it (I believe just normal "break clauses" can often be one-sided?

No they can't if they only let one side break then they are unfair and most likely not enforceable.

Break clauses are often badly drafted and thus let people down.

fp_1974

franklee wrote: »

Yet another badly drafted break clause. It's presumably the agent's contract so they should know what it means and have probably explained their version to the tenant anyway which as far as the tenant is concerned is as good as coming from you.

Thanks for your help, agreed it does seem rather badly drafted and open to various interpretations. I have spoken to the letting agent and they are the ones who told me that it had to be by mutual consent. However, when asked what happens if we agree it and then the tenant changes their mind, does it all become null and void, they replied with a "don't know", which didn't really instill confidence in me that they knew what they were talking about!!!

I do feel bad about asking the tenant to leave early, I've had no problems with them. However, I'm tied to a two month notice period on the property I'm currently renting, so giving them the flexibility to leave "whenever is good for them" will put me significantly out of pocket, whilst I maintain payments on two places. I'll speak to the tenant about mutually ending the contract early, otherwise it's looking like I may just have to let it run till the end of August.

Thanks anyway!

clutton_2

""giving them the flexibility to leave "whenever is good for them" will put me significantly out of pocket, whilst I maintain payments on two places. ""

this is part and parcel of being a landlord - you cannot sign a mutually binding contract with your tenant and because YOUR circumstances change you want them out asap .... they are fully entitled to stay till the last day of the 12 months .... please dont expect sympathy that you may have two sets of housing costs to pay

you undertook to operate a housing business - which impacts on peoples lives

have you any idea how much it costs folks to move these days ?? hardly worth it for a 6 months tenancy ...

and before you ask - i am a landlord

fp_1974

clutton wrote: »

""giving them the flexibility to leave "whenever is good for them" will put me significantly out of pocket, whilst I maintain payments on two places. ""

this is part and parcel of being a landlord - you cannot sign a mutually binding contract with your tenant and because YOUR circumstances change you want them out asap .... they are fully entitled to stay till the last day of the 12 months .... please dont expect sympathy that you may have two sets of housing costs to pay

you undertook to operate a housing business - which impacts on peoples lives

have you any idea how much it costs folks to move these days ?? hardly worth it for a 6 months tenancy ...

and before you ask - i am a landlord

Yes, I am fully aware of how much it costs people to move these days, as well as the associated fees etc that agents charge with renting places. I am currently renting myself so I also see things from the tenants perspective.

I am not looking for any sympathy (!!), I was merely wishing to clarify a term in the contract and was hoping that some people on here could give me some friendly advice (which they have). As it transpires it looks like I have to let the tenancy run for 12 months, and that is fine if that is the legal position. I'm not wanting to get rid of my tenant just for the sake of it, I know full well that moving house is a bit upheaval.

If the clause was as I'd understood it, then the tenant would also have been able to leave when they'd wanted if THEIR circumstances had changed. If the flexibility exists on both sides I don't understand how this is unfair on anyone.