kicked out for Olympics - AST - s.21 notice - break clause

llama_thumper

Hi,

Was hoping for some advice... I live close to an Olympic site and have received a letter from my landlord exercising their break clause (s.21(1)(b) notice, expiring on 10 July 2012, dated 26 April 2012) and stating that the landlord believes he can get more on the open market, thus I can either leave or try and continue with an increase. Looks like they want to cash in on the olympics, and I'm not too keen on searching for a flat instead of going on holiday.

I have a 12 month AST fixed term contract, initially concluded on 10 September 2010 (to have ended on 17 September 2011), and then extended for another 12 months (to now end on 17 September 2012, subject to the break clause, having started on 18 September 2011 after the renewal). The break clause states that "the Tenant agrees that the Landlord has the right to terminate the Tenancy after Eight calendar months by giving the Tenant not less than two calendar months notice in line with the due rental date, to end the Agreement. The notice period cannot commence earlier than 17 March 2012 and cannot expire any earlier than 17 May 2012. The notice must be received by the start of the notice period and the notice must exprire at the end of a relevant period, being the day before the rent normally falls due. Upon the expiry of this notice this agreement shall cease".

couple of questions: as I understand there's no statutory right that overrides this, i.e. the landlord is in his rights to evict me by 17 July 2012? or does he have to give any specific reasons? secondly, is it correct that upon expiry of this notice, the tenancy converts into a periodic tenancy, which means they have to, upon 18 July 2012 (if I don't move out), give me further notice? if so, what happens after that? I would have been happy to move out in September, as previously agreed, but think they're just profiteering from the Olympics...

propertyman

I would have to see the actual tenancy document and the renewal to comment as "termination after eight months" might arguably mean notice has to be given after 8 months giving him one day 17-5 to do so.

It is a poor and open use of terminate, but as long as it does not invalidate the break clause, then it has the same effect, if notice is given to be effective on 17-5.

That said you can refuse to leave and the landlord must get a court order for possession, assuming the notice is valid, which will take longer than the olympics will last. Bearing in mind the consequences to you, it might then be a point to negotiate , bearing in mind short lets in July minimise the availability of a new home, and therefore an "incentive" from the landlord might assist you

jjlandlord

Indeed, the effect of the notice is to end the fixed term tenancy, but as you said a statutory periodic tenancy will replace it immediately if you do not move out.
This does not mean that your landlord will have to serve you further notice: After the expiry of the s.21 notice, provided it is valid, your landlord will be entitled to start court proceedings to evict you, that's all.

If you paid a deposit, it is protected in an official scheme? Have you received the prescribed information?
When is your rent due date?

If the notice is valid, and the landlord starts court proceedings right after expiry, I think that there is close to no chance that he can forcibly evict you (ie. get a court order, then have it executed by bailiffs) by the end of the games (12 August iirc).
So if his plan is to cash out on the Olympics, you're in a rather strong position, with the caveat that once the fixed term tenancy has ended your landlord can increase the rent through a s.13 notice.

propertyman wrote: »

I would have to see the actual tenancy document and the renewal to comment as "termination after eight months" might arguably mean notice has to be given after 8 months giving him one day 17-5 to do so.

IMHO, it's clear that it is the termination (ie. the notice's expiry) that must occur after 8 months.

Kynthia

I'm not sure that break clause is valid as it seems contradictory.

Even if the LL does use it you don't have to leave. He would have to serve you with a section 21 which just tells you that after the expiry date he can apply to the courts for possession. Then he would need to be granted possession by a judge which takes time.

I think it's disgusting that he signed a 12 month agreement if he always intended to try to kick you out before then.

marliepanda

Urgh in this situation I would be Little Miss (or Mr) Awkward. Making sure I wasnt out until after the games, leaving him high and dry with no tenant.

propertyman

jjlandlord wrote: »

IMHO, it's clear that it is the termination (ie. the notice's expiry) that must occur after 8 months.

We both agree that the tenant is in a strong position to hold the landlord hostage to fortune.

I agree that the wording of the break clause is clearly intended to set out notice between March and May, but "termination after" is consistent with a normal convention that notice is served after a particular date, after month 8, while the March and May dates reflect the convention where the various dates are set out. As the two sentences are not sufficiently linked they can be interpreted as contradictory.

Indeed, there would be no need for such elaborate wording, as as long as a break clause has a clear effective date, the landlord can give (at least) 2 months notice at any point.

A boilerplate clause could have been used......

jjlandlord

propertyman wrote: »

I agree that the wording of the break clause is clearly intended to set out notice between March and May, but "termination after" is consistent with a normal convention that notice is served after a particular date, after month 8, while the March and May dates reflect the convention where the various dates are set out. As the two sentences are not sufficiently linked they can be interpreted as contradictory

There's no convention, everything relies on the wording.
Here the wording is clear that the tenancy can be terminated after 8 months, and that's about it.
What is a bit unclear to me is that the clause states that the tenancy period cannot begin before 17 March, it also allows for the notice to be served before that date.
In any case notice was served after that date.

One point on this clause, though, is that I believe that non-reciprocal break clauses (ie. giving the landlord the right to break, but not the tenant) are considered unfair by the OFT.
As unfair terms are void, OP could claim the clause is an unfair term as a defence should the LL use the notice to actually seek possession in court.

Tr1pp

jjlandlord wrote: »

There's no convention, everything relies on the wording.
Here the wording is clear that the tenancy can be terminated after 8 months, and that's about it.
What is a bit unclear to me is that the clause states that the tenancy period cannot begin before 17 March, it also allows for the notice to be served before that date.
In any case notice was served after that date.

One point on this clause, though, is that I believe that non-reciprocal break clauses (ie. giving the landlord the right to break, but not the tenant) are considered unfair by the OFT.
As unfair terms are void, OP could claim the clause is an unfair term as a defence should the LL use the notice to actually seek possession in court.

I think this nails it (assuming the contract does not allow a the tennant to impose a break clause also - OP has only stated a few terms of the contract)

failing that I would stay put and force the Landlord to seek eviction through the courts as a big !!!! you for trying to profiteer over the olympics after signing a 12 month AST contract!

HAMISH_MCTAVISH

So the facts appear to be:

- The landlord has stated he can get more for the flat on the open market, and has triggered the break clause.

- The tenant assumes this is partly due to the possibility of a short term olympics let.

- The tenant does not really want to move.

- The tenant can make things difficult for the landlord by breaching the terms of their agreement and forcing legal action for the landlord to remedy.

- The tenant exposes themselves to additional costs and bad references if they do so.

Why not just negotiate with the landlord?

If he thinks he can get more for the flat on the open market, then take a look at market rates and see if...

a) he really can, and...

b) if it's worth agreeing to pay them to continue.

If that turns out to be a red herring and it really is all about the Olympics short term let, then why not see if the lease can finish pre olympics, and commence a new one post olympics.

Then move your holiday to coincide with the games, put your stuff at a friends place for a couple of weeks (assuming the flat is furnished and there isn't much to move), and allow the landlord to let it short term, with a bit of compensation thrown to you for the disruption, perhaps a months free rent on the new lease.

Saves you the hassle and expense of house hunting at a bad time of year, saves the landlord the hassle of finding a new tenant afterwards.

And nobody exposes themselves to the risk and costs of legal action and/or bad references.

squeeks

Ignoring the profiteering side for the landlord here.

Assuming you live near the Olympic games and you intended to not vacate the area during the madness anyway. It is going to be very difficult for you to find another place to live in the local area during this period, and a real PITA to arrange a move as I imagine security and general foot fall is going to be interesting during those few weeks.

This is only a notice to quit, not everything in life goes smoothly. You may be able to leave earlier with the LL agreement (and possibly compensation!) if you can find somewhere, or it may take a little longer than the notice in these circumstances - say after the games. A Judge would probably be very understanding, assuming it ever gets that far.

Either way, personally I wouldn't be staying any longer than I had to, and I certainly wouldn't be tempted to return after being kicked out.

debsue

I think this sort of thing happened a couple of years ago in South Wales when the Ryder Cup came to Newport. Many LL were putting clauses in the contracts saying that the tenants had tp make the property available for the two weeks as it was rumoured at the time that they could get up to £1000 per week for their properties. Sheer greed