landlord changing lease halfway through!

watchingmymoney

Hi I was hoping I could get some advice so thanks in advance for any help you can provide!
I moved into my flat on 19 March and asked for a 6 month break clause in the 1 year lease as it is a flat in an area of London I've never lived in and I wasn't 100% certain I could get used to the planes going overhead (it is near Richmond). My landlord reluctantly agreed.

Last week the landlord asked if I'm happy in the flat (I said, yes generally although the upstairs neighbours are loud) and if so, he wants to remove the break clause (it came into effect on 19th July). I said I'm a little concerned about changing a legal contract because I don't want to get in a situation that if I have an emergency (e.g.,with my family the US or something like that) and need to leave, that I am tied into the contract until 18 March 2012.

From my understanding by removing the break clause I would be responsible for the rental until that time. I made it clear to the landlord repeatedly in the emails he sent me that I had no plans to leave (I had lived in my previous flat for almost 4 years and only moved due to construction works so I think that shows that I'm rather reliable.)

The landlord is now threatening to exercise the break clause (from 18 September which is a little less than 2 months away) and "agree to a further period which suits us both" to quote his email. He says he does not want to run the risk of my going at say Xmas, when it would be difficult for him to re-let. This is despite my saying in two prior emails to him as part of this email exchange that I had no plans to leave. I am concerned that this is simply his way of trying to break a legal contract so he can get more rent from me.

Again, advice welcome. Thank you.

poppysarah

Would you rather move or put up with a bully?

watchingmymoney

From my many years of renting in London I've found virtually every landlord to be a bully (with several lying about what they can and can't legally do) so I don't think moving (and taking on all the additional costs of moving) would resolve the problem.

My questions are really these: 1) can the landlord ask for the contract to be changed less than halfway through and 2) if the landlord does exercise the break clause (and he is now giving less than 2 calendar months notice specified in the current contract) can he then turn around and say "sure you can stay but you have to pay more" DESPITE us already having a contract?

DizzyDasher

Here is my take from what you have said - it may not be what you want to hear, but maybe it's useful to have another perspective (so you know, I have never been a landlord, but was a tenant for 13 years with 4 tenancies, so have some experience from the tenant side!) The below is my understanding from what you have said - apologies if I have misunderstood anything, or read too much into anything!

I assume the break clause is two way (either of you can give notice, to end on 18th September), and that it can be exercised at any time after 6 months (i.e. you or your landlord could give notice to end on the 18th of any month from September to March). It may be worth checking this - some break clauses are worded to only give you one specific point at which you can break, in which case his Christmas concerns would make much less sense.

So looking at this from your POV, you are saying you are a reliable long term tenant, and although you value flexibility because of your family commitments abroad, in practice (as your record shows) you are very unlikely to actually use that flexibility, so you thnk your landlord should be relaxed about the risk that you go over Christmas as it is unlikely to happen (so why give up a good tenant now just on the offchance that you might give notice over Christmas?) You suspect that in fact your landlord just wants a higher rent: either from you or from somebody else. Presumably this reflects an increase in rents in Richmond since you signed your agreement (and this seems to make sense - generally rents are going up in nice bits of London I think).

Now let's look from the landlord's point of view. He wanted commitment from both sides for a year, but agreed at your request to a 6 month break. He now sees rents increasing, and is in a position where he feels he is getting a slightly below market rent and running the risk that you might terminate the agreement to end on 18th December or 18th January, the first of which would probably leave him with at least a 4 week void, and the latter at least a couple of weeks I would think. He is wondering whether he can't do better by terminating your tenancy now, and reletting to somebody else who is happy to sign up for a full year, giving him more certainty and probably a higher rent.

So far, both your positions seem quite reasonable to me. In the end, you have asked for flexibility in the contract - but that flexibility has in a way "come back to bite you" because in practice rents have risen and your landlord is nervous about a Christmas void, and so is thinking of using the flexibility of the break clause to his advantage. In an "alternative universe" rents might have fallen or you might have needed to leave London to see your family, and the flexibility might have worked to your advantage.

I guess what I'm saying is I would try not to take this personally or feel that he is "taking advantage" in some way. You wanted flexibility for very good and reasonable reasons, and expected him to be happy with that because you are a good tenant (totally reasonable). However, in practice he has become more concerned about a Christmas void (possibly he hadn't thought about this possibility enough before agreeing to your request, possibly something is going on in his life that would make this doubly difficult, or possibly rising rents are concentrating his mind). Whatever the reason, that is his right, and he also has the legal right to use the same contract flexibility that you were keen to have for your protection.

So it seems to me nobody is being unreasonable here - you both took a risk by signing a more flexible contract, and in the end that flexibility has benefited him more than you - such is life!

So what can you do?

a) try to call his bluff - refuse to change the terms of the contract. He may then give you notice to move out on 18th September (or 18th of some later month). At that point you could try to renegotiate. Alternatively he may decide to carry on with the contract and hope for the best, and may over time be more comfortable with the flexibility you have, as he sees you not exercising it!

b) wait to see what his request is and decide whether you think it is reasonable or not, depending on what you think the risk his that he will terminate the agreement if you decline.

c) make your own suggestion for a variation - e.g. would you be prepared to commit not to end the tenancy on 18th December or 18th January, to get over the Christmas issue?

I think the key thing is to treat this as a busines transaction like any other. If he tries to break the terms of the contract, then you can take action (and there will be people here who can advise on that). At the moment it sounds as if everything he is doing is within both the letter and the spirit of your agreement, and therefore the best thing to do is to enter into some kind of negotiation - understand his concerns and try to meet them in the way that has least costs to you, OR, if it is too costly for you to meet them, then say "thanks, but maybe this isn't going to work out after all" and find somewhere else to live where the landlord is more comfortable with a flexible arrangement (but taking account of the fact that this will tend to mean more flexibility for the landlord to terminate too!!)

Good luck - hope this has been of some use to see "the other side" and some options.

DizzyDasher

watchingmymoney wrote: »

From my many years of renting in London I've found virtually every landlord to be a bully (with several lying about what they can and can't legally do) so I don't think moving (and taking on all the additional costs of moving) would resolve the problem.

My questions are really these: 1) can the landlord ask for the contract to be changed less than halfway through and 2) if the landlord does exercise the break clause (and he is now giving less than 2 calendar months notice specified in the current contract) can he then turn around and say "sure you can stay but you have to pay more" DESPITE us already having a contract?

On your specific questions:

1) if the break clause is mutual and if the proper notice is given, then of course he can give notice to end the agreement (just as you could if you had wanted to).

2) if the contract says he has to give 2 months notice then he has missed the boat, and couldn't give you notice for 18th September, it would be 18th October at earliest (even assuming he serves the S21 notice in the correct way - if he does give you notice it would be worth coming back here to check he has done everything by the rules, or else you might have even longer). I'm assuming here that the contract allows for a break at any point after 6 months (this isn't necessarily the case: I once had a contract with a break clause at one specific point in the tenancy 6 months in, at my landlady's request - but she didn't give notice at that specific point, so as soon as that point had passed I knew I was secure for the rest of the year).

3) Once proper notice has been given and your tenancy has ended, he can offer you or anybody else a new contract on new terms (including higher rent) - you would of course be perfectly free to tell him where to go if you think you can get a better deal somewhere else!

may_fair

watchingmymoney wrote: »

The landlord is now threatening to exercise the break clause (from 18 September which is a little less than 2 months away) and "agree to a further period which suits us both" to quote his email.

If the LL serves notice under the break clause, the only effect this will have is to end the fixed term at notice expiry, not the tenancy. You would not be obliged to vacate or sign a new contract. If you remained in occupation after that, a statutory periodic tenancy would automatically arise (a.k.a. a rolling contract).

(Alternatively, you could choose to vacate at notice expiry).

If the LL wished to evict you, he'd have to serve s.21 notice as well, giving you at least two months, and expiring no earlier than the end of the fixed term (and the break clause means he can end it early).

Please could you quote the exact wording of the break clause.

may_fair

DizzyDasher wrote: »

2) if the contract says he has to give 2 months notice then he has missed the boat, and couldn't give you notice for 18th September, it would be 18th October at earliest (even assuming he serves the S21 notice in the correct way....

Notice under the break clause is not the same as a s.21 notice (though break clauses sometimes echo the requirements of s.21, meaning that LL can serve a single notice fulfilling both functions. But generally, it's best to serve them separately).

The notice under the break clause has the effect of ending the fixed term at notice expiry, thus enabling the LL to serve a s.21 notice expiring 'early' (i.e. earlier than the original fixed term).

We do not know the terms of the break clause in this case, and it's quite possible that it provides for one month's notice, and may not have to expire at the end of a rental period - so it is pure speculation to suggest that his notice could expire '18th October at the earliest'. N.B. LL would still have to serve a s.21 giving at least two months' notice.

3) Once proper notice has been given and your tenancy has ended, he can offer you or anybody else a new contract on new terms (including higher rent)

The LL's notice under the break clause does not end the tenancy, it ends the fixed term. OP could choose to move out at the end of LL's notice under the break clause and this act would end the tenancy. Equally, OP may choose not to vacate, and a statutory periodic tenancy would arise.

may_fair

I should add that the tenant's notice under a break clause has a completely different effect. It ends both the fixed term and the tenancy at notice expiry. A statutory periodic tenancy will not arise in this case, even if T remains in occupation after his notice expiry, because of s.5(2)(b) Housing Act 1988:

(2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of:

(a) an order of the court of the kind mentioned in subsection (1)(a) or (b) or any other order of the court, or
(b) a surrender or other action on the part of the tenant,

then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section.

DizzyDasher

Sorry, it looks like I jumped in too early: on the details of timings and legalities I would definitely listen to Mayfair.

However, I would stick by the point that it's worth taking a step back and not taking this too personally, and recognising that flexibility cuts both ways!

nomoneytoday

If you were to leave and go elsewhere then another 6 month contract would be the minimum at the new rental.
I would see if he'll agree to no break clause until after Christmas as a compromise(?)

watchingmymoney

Thank you all for the comments and advice.
The break clause is "the agreement may be determined at any time by either party to giving the other not less than two calendar months previous written notice such notice not to be given before the expiration of four calendar months from the commencement of letting created by this Agreement."

I will try to negotiate with him and make it clear that I promise not to leave before January and that I plan on staying the entire one year lease. I guess my only concern is if my personal circumstances radically and unforeseeably change before 18 March next year if he would be at all flexible as long as I covered the cost of him finding a new tenant? Does that sound like a reasonable suggestion? I mean surely people find themselves in circumstances where they've signed a lease and something then changes and they need to move (for example is someone gets engaged or married and wants to live with their fiancee/spouse). Are landlords willing to let them if their costs of finding a new tenant are covered?