2 Months Break Clause - HELP!!

monochrome1

Hello Everyone,

After years of using this forum to solve all and sundry, I've finally registered! Glad to be here

Here's the question,

My landlord has just today served a section 21 notice on me. He says it's because he wants to sell the property however I think it's because he was annoyed that I kept asking for things to be repaired! (Like he is obliged to do).

The tenancy is "6 months with 2 months break clause after 4 months."

What does this mean exactly? I moved in on 1st July, and it says I need to vacate by 1st November.

I was under the impression that the break clause above would mean he would have to give 2 months notice AFTER 4 months? Meaning giving notice on 1st November for vacation on 1st January?

Between me and you, it's worked perfectly because I've just had an offer accepted on the house I wanted, so November should be perfect as the current owners don't want to leave until end of October.


Just wanting to know the in's and out's.

Thanks in advance!

nicthemighty

I read it as "after 4 months the contract can be broken with 2 months notice". So 1st November would be earliest you could serve 2 months notice to break it.

However, given that 4 + 2 months = 6 months, which ends the tenancy anyway, it seems that the clause would be pointless under those terms.

So I think it's poorly worded to mean "the contract can be ended after 4 months, with 2 months notice not to expire before the 4 months are up".

Yorkie1

See here for how a tenancy can be ended:
http://forums.moneysavingexpert.com/showpost.php?p=52421475&postcount=6

Even if the rest of my post didn't apply, the s.21 notice is too late for effective expiry of 1 November as it's less than two tenancy periods' notice from today to then.


However, I *think* that statute law trumps tenancy law and that your LL hasn't got a leg to stand on if he wants to force you out before the end of the fixed period. I'm pretty sure that irrespective of tenancy terms, a LL cannot seek repossession of the property until the T has been there 6 months. So he cannot force you out for 1 November (or 1 December if the two tenancy periods is properly calculated). Hopefully someone else will be along to pinpoint the relevant part of legislation which provides for this.

That being said, there is absolutely nothing to stop both parties agreeing a mutual early surrender of the tenancy - in writing. So if you are amenable to going, then it might be arrangeable.

However, do NOT make any arrangements to leave before you have exchanged contracts on your new place. If you've only just put your offer in on the new house, the end of October is only 8 weeks away. The average time from offer to completion is, I'm pretty sure, several weeks longer than that. You have absolutely no control over many of the factors which can cause delay in a house purchase, and could find yourself homeless if you agreed to move out on a given date and then couldn't complete in time.

Edit: by the way:

a) is this in England/Wales?
b) did you provide a deposit?
c) did the LL protect the deposit within 30 days of the start of the tenancy?
d) did the LL provide you with the prescribed info relating to the deposit (quite a long document) within 30 days?
e) what is the wording of the expiry date of the s.21 notice?

BitterAndTwisted

The earliest your landlord can attempt to end the tenancy legally is six months from when it started regardless of any shonky terms, conditions or clauses in that tenancy agreement.

It can only be ended before the first of January by mutual agreement IN WRITING. Therefore you don't have an automatic right to not pay the rent until January either.

G_M

NO S21 can validly expire within the 1st 6months of any AST.

That is irrespective of the length of the fixed Term (which might be 3 months for example) OR any break clause in the contract.

* Is this England?
* What date was the S21 servedon you? (received?)
* what issue date shown?
* what expiry date? (I assume 1st Nov)

If your tenancy started on 1st July, then the EARLIEST a S21 can expire is 31st December.

If the LL went to court requesting possession on the basis of a S21 expiring on 1st November, he would lose.


Housing Act 1988 S21

5)Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than—
(a)in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and

(b)in the case of a replacement tenancy, six months after the beginning of the original tenancy.

monochrome1

Thanks so MUCH! To confirm,

I'm in England
I provided a deposit and this was protected and I have all the documents
The notice was served today (2nd Sept)
The expiry date is 1st November 2013.

I offer on the house was some weeks ago now, and we are due to exchange next week. But the current owners want to stay until the End of October and I'm fine with that as I'm not really in any rush.

I think I'm clear on one thing - 1st November is not allowed! haha

dimbo61

So the Landlord can not evict you on the 1st of November BUT you want to move into your new home then so you do not want to pay for two extra months rent and mortgage payments on top.
Have you got the eviction notice S21 in writing from the Landlord ?
You want your full deposit back !
If you and the Landlord agree an early termination of the contract you have both signed that is fine.
Does he /she know you are buying a property ?

theartfullodger

A Valid break clause, if exercised by the landlord, simply ends the initial fixed term. If you stay simply 1 second beyond midnight your tenancy then becomes a rolling, month-by-month, tenancy.

If LL wants you out he has to..

Issue S21 for break clause...
See if you leave when that expires (don;t!)
Then issue ANOTHER s21 for the periodic... expiring 3 months after 1st one.. (don't leave for that either)
Then apply to court for possession order.. (notice may be invalid)
Get PO - you still don;t have to leave...
If you stay then get bailiffs in: Courts are very busy right now as are bailiffs so there may be a month or so for that...

So months & months...


However he (says he.. yeah, right, maybe..) wants to sell..

Well, if he has a buyer wanting to move in & a good selling price he might be willing to "encourage" you to go when he wants.. I'd start asking for £5-10k...

Cheers!

Kynthia

How was the notice served, was it in person or did it arrive in the post? If it was posted then does the envelope have a post mark date on it, just in case it was posted early enough to be considered 'served' in time.

Guest101

I think you should aim to resolve this amicably with the LL, ask for moving costs, full deposit returned and a little extra insentive. Dont tell him your buying, see what he comes up with.

Since hes serving notice wrongly, he'll probably be hopping mad, but may just have to accept your terms

Yorkie1

Kynthia wrote: »

How was the notice served, was it in person or did it arrive in the post? If it was posted then does the envelope have a post mark date on it, just in case it was posted early enough to be considered 'served' in time.

Usually this would be a valid question, but the law says that irrespective of how it was served, it cannot be enforced until 6 months are up, the date of which is more than 3 months away and so it isn't an issue in this case.