Break Clause understanding

Chris2685

I posted this on another thread, but it is kind of off topic there, so I thought I'd post it here to maybe get some more responses...

Does anyone know if this means what I think it means? I think that it means that after the 30th April 2009 we can give 2 months notice. But the way it is worded makes my head hurt. It's the break clause for our tenancy agreement.


9.11.1 - Notwithstanding the provisions contained within the Tenacncy Particulars and relating to the term of the tenancy hereby created it is agreeed that either part may terminate the agreement by giving to the other at least two months prior written notice of theur intention to so do such notice to be served on a rent due date and delievered by hand or first class post and shall not expire before 30th April 2009 at which time this Tenacny shall determine absolutely but without prejudice to any claim by either party against the other in respect of any antecedent breach or non-observance of the prvision of the Agreement.


Do you think it would be good manners to e-mail them first and let them know our intentions, so we can find out if they would be willing to let us move earlier?

Pee

Usually the tenant only has to give one months notice. I think this means that you have agreed to the alternative 2 months and so can give two months notice on the next rent due day. SHELTER may be able to help. I would consider instructing a solicitor to serve the notice, as it is very easy to get wrong, and if you do get it wrong, that is another two months and probably a little bit longer - i.e. could be the best part of three months wasted.

If the Landlord is approachable, letting them know your plans may mean you can agree something else.

Chris2685

I wouldn't want to bother with a solicitor, any savings we would make by moving out a month or 2 early would be washed away... We are moving to try and save some money by moving into cheaper accomodation, so using a solicitor isn't really something I would think of doing.

00ec25

so your fixed term ended on 9 April 2009?
after which you have agreed to giving 2 months notice of your intention to leave and this has to be done in the manner stated. As you say you can always ask if they will agree something different but you cannot force them to do so.

The issue of whether a 2 months notice period from the tenant has been discussed many times and opinion is that, irrespective of whatever is said in your tenancy agreement, once you have finished the fixed term period then the law is you only have to give 1 months notice, but you risk being taken to court for breach of contract if you try to do it and since you want to avoid legal costs probably better not to risk it

dopester

Chris2685 wrote: »

I wouldn't want to bother with a solicitor, any savings we would make by moving out a month or 2 early would be washed away... We are moving to try and save some money by moving into cheaper accomodation, so using a solicitor isn't really something I would think of doing.

Rented accommodation I hope?

I thought you like where you were... and even rated it as better than the house you were going to buy... except for it being an apartment.. not your ideal choice.. a house.

Perhaps your landlord will offer to lower the rent, to match what you have in mind. Unless of course you're really downsizing in order to save on rental costs.

Chris2685

dopester - I love it there, there are several problems though which have become apparent. One is the economy 7 heating, not ideal, especially with a baby and the fact the flat only has single glazing so most of the heat which costs a fortune ends up getting lost. The other is that rents in this area have reduced significantly that we could make saving of £100-£200 per month if we move. Of course, we will have to move into slightly less plush accomodation, and do away with the swimming pool access. But for me, a swimming pool is not worth £100-£200 a month...

If the landlord agrees to lower the rent by at least £100 we would stay, but I doubt they will. We're not down-sizing, but possibly will have to take a cut in luxuries.

00ec25 - The fixed term hasn't ended, our tenancy agreement is until the end of Ocotober 2009. The April date is the date mentioned in the break clause as being 6 months.

AdrianW2

Chris2685 wrote: »

The fixed term hasn't ended, our tenancy agreement is until the end of Ocotober 2009. The April date is the date mentioned in the break clause as being 6 months.

IGNORE THIS - IT'S WRONG!

This doesn't make sense. Assuming you are an assured shorthold tenant then your landlord can't evict you with two months notice until the end of the lease. So the clause is unenforcable from the landlord's perspective. Either the term ended on 30th April or it ends in October.

BTW, although not relevant here, I think you only have to give a month's notice once the tenancy becomes periodic regardless of what the agreement says.

I'd be tempted not to raise this. Just go with what the agreement says if you want to leave.

Edit - I suppose the clause could just be a cut-and-paste error, the date not having been corrected from a previous version.

Chris2685

See what I mean about it being a confusing clause...

I thought the standard break-clause for an assured shorthold tenancy was that the tenant could leave as long as they give notice after 6 months.

franklee

There is no such thing as a standard break clause. However it is possible to have a break clause to break the tenancy during the fixed term.

In your case as you have passed the date you can serve the two months notice but you must serve it on a rent due date. I'd hand deliver it on the correct day and get a receipt so there can be no argument you complied with serving it on the one day a month they will accept!

tbs624

AdrianW2 wrote: »

This doesn't make sense. Assuming you are an assured shorthold tenant then your landlord can't evict you with two months notice until the end of the lease. So the clause is unenforcable from the landlord's perspective. Either the term ended on 30th April or it ends in October.

It *does* make sense: it's a break clause within a Fixed Term and, far from being unenforceable, such a break clause may be invoked by either party if timed correctly.

AdrianW2

Oops. tbs624 appears to be correct and I was wrong, a landlord may terminate an AST between six months and the end of the term.