Notice Given

grifferz

Lyz_Fox wrote: »

this notice can be served upon the tenant at any time but must not expire before 6 months from the commencement of the tenancy.

I think that their notice may be valid then. I order to use the break clause, their notice must expire at least 6 months from the start of the tenancy (22nd Feb → 21st August). Theirs expires 2nd September, so that's okay. It must also be at least two months of notice, so that's okay too.

As far as I am aware, an S21 notice for a periodic tenancy must expire at the end of a rental period, but that is not the case for inside the fixed term using the break clause.

If I am correct then your best option would be to write and ask if you can stay until end of 21st September. It may also be a simple mistake since 22nd matches your payment dates and will be simpler to work out your final rent payment.

If I am wrong then I expect more knowledgeable folks will correct me now!

This is based on: http://www.landlordzone.co.uk/notice_to_quit.htm

G_M

Lyz_Fox wrote: »

the contract says.
notwithstanding the provisions of the agreement relating to the terms of the tenancy it is agreed within the parties that should the LL wisht to terminate the tenancy, he may give the required 2 months notice in writing to the tenant in accordance with section 21 of the housing act 1998. this notice can be served upon the tenant at any time but must not expire before 6 months from the commencement of the tenancy.
Thank

* your tenancy started on 22 Feb 2013.
* therefore the 12 month AST ends 21st Feb 2014
* the break clause (if valid - see below) can be implemented on/after 21st August
* the 'contract date' is only relevant for giving notice after the 12month Term has ended and the tenancy becomes Periodic.
* The break clause requires 2 calender months notice.
* in order to implement the break clause 21st Aug, the LL must serve notice on/before June 21st.
* in order to implement the break clause on 2nd Sep, the LL must serve notice on/before 2nd July

*However, for a break clause to be valid itmust be reciprical. ie, it must allow either side the same right to break the contract.

Your break clause only mentions the LL's rights. Therefore either
1) the clause is invalid, and you can remain for 12 months or
2) you have an equal right to give notice under the same break clause terms.

Only a judge could decide between 1) & 2), but you could argue for 1) if you wish!

edit: note it is a strange contract. In reality, it is (almost) identical to a 6 month Fixed Term AST.

* After 6 months, your contract can be ended by 2 calender months notice
* After 6 months, a 6 month contract would become Periodic & could be ended by 2 Tenancy Periods notice

bouicca21

As far as Virgin are concerned:
I too had to move from one flat to another inside the 12 month contract. The new flat also had a Virgin box so there was no connection charge but Virgin insisted that I had to start a new 12 month contract. Since I was moving because I was piggy in the middle between the non-mortgage paying landlord and the bank's repossession proceedings, I was too stressed to argue. It might be worth ringing them on different occasions - I think the desire for commission influences what they tell you.

ValHaller

G_M wrote: »

* in order to implement the break clause 21st Aug, the LL must serve notice on/before June 21st.
* in order to implement the break clause on 2nd Sep, the LL must serve notice on/before 2nd July

Are you sure? The clause itself says 'in accordance with section 21 of the housing act 1998' so if the LL has missed 21 August, the next date is 21 September, I would think?

G_M

ValHaller wrote: »

Are you sure? The clause itself says 'in accordance with section 21 of the housing act 1998' so if the LL has missed 21 August, the next date is 21 September, I would think?

A good point but..

S21 specifies how a tenancy can be ended
* at the end of the fixed term, and
* during a Periodic tenancy

Section 21 of the 1998 says nothing whatsoever about break clauses, so this part of the clause is meaningless.

Let's face it, the tenancy agreement has been cobbled together, so god only knows how a court would interpret it!

ValHaller

G_M wrote: »

A good point but..

S21 specifies how a tenancy can be ended
* at the end of the fixed term, and
* during a Periodic tenancy

Section 21 of the 1998 says nothing whatsoever about break clauses, so this part of the clause is meaningless.

Let's face it, the tenancy agreement has been cobbled together, so god only knows how a court would interpret it!

S21 is firmly predicated on tenancy periods, so I am expecting notice by 21 July for 21 September.

ValHaller

G_M wrote: »

*However, for a break clause to be valid itmust be reciprical. ie, it must allow either side the same right to break the contract.

Your break clause only mentions the LL's rights. Therefore either
1) the clause is invalid, and you can remain for 12 months or
2) you have an equal right to give notice under the same break clause terms.

Only a judge could decide between 1) & 2), but you could argue for 1) if you wish!

This point has come up before, I think that the judge should bealmost bound to interpret in favour of the party disfavoured by the clause. So if the tenant wants to leave, it is interpreted in tenant's favour and tenant may leave, but if landlord wishes to terminate, it is still in tenant's favour and tenant may stay.

G_M

ValHaller wrote: »

S21 is firmly predicated on tenancy periods, so I am expecting notice by 21 July for 21 September.

No.

Not during the fixed term.

Which in this case is the first 12 months.

(1)Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—
(a)... and

(b)the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice [F2in writing] stating that he requires possession of the dwelling-house.

4)Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied—
(a)that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice [F4in writing] stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and

G_M

ValHaller wrote: »

This point has come up before, I think that the judge should bealmost bound to interpret in favour of the party disfavoured by the clause. So if the tenant wants to leave, it is interpreted in tenant's favour and tenant may leave, but if landlord wishes to terminate, it is still in tenant's favour and tenant may stay.

I believe it was me that brought it up before, and you that suggested the above!

And I think I agreed with you then, and still agree with you now!

franklee

ValHaller wrote: »

This point has come up before, I think that the judge should bealmost bound to interpret in favour of the party disfavoured by the clause. So if the tenant wants to leave, it is interpreted in tenant's favour and tenant may leave, but if landlord wishes to terminate, it is still in tenant's favour and tenant may stay.

Yes. According to OFT356 the clause is unfair if the tenancy agreement doesn't give the tenant an equal right right to break. Of course a judge would have to agree in any specific case but I'd assume the OFT to be right and if so the unfair clause can't be used by the landlord.

ValHaller wrote: »

S21 is firmly predicated on tenancy periods, so I am expecting notice by 21 July for 21 September.

Only when it's a periodic tenancy. A section 21 served in the fixed term doesn't have to align to tenancy periods. However if the section 21 is exercising a break clause it has to comply with what the break clause says, so this may specify alignment with the date the tenancy started but it doesn't in the OP's case.

Lyz Fox, The dates look OK to me based on the information given so far. However was your deposit protected etc. Also you do not have to leave when the section 21 notice asks. The end date of the notice is merely when the landlord can apply for a possession order. This whole process takes a few months so you won't need to be out in September even if the section 21 is valid. If you require assistance with housing get proper advice and do not make yourself voluntarily homeless by moving out when the section 21 expires unless you understand the full implications.