Break clause in tenancy agreement

jbmadd

My friend signed signed up to a 12 month tenancy agreement, but is unsure whether there is a break clause allowing him to leave early.

I have looked through and found the following wording:

“The tenancy shall commence on … and shall be for a term of 12 months”

“…the term must be for a fixed period of not less than 12 months. If the tenant remains in possession after the expiry of the Term and no new tenancy comes into being, the tenant becomes entitled to a statutory periodic tenancy…”

“the tenancy is for a fixed period of 12 months”

“The tenant may determine the tenancy hereby created by giving to the Landlord not less than two months prior notice in writing to expire at the end of a calendar month and on expiration of such notice the tenancy shall cease and the tenant shall give up vacant possession of the property but without prejudice to the rights and remedies of either party against the other in respect of any antecedent claim or beach of obligation”

I haven’t seen this use of the word “determine”, but I read it as “terminate”. Does this clause mean that the tenancy can be terminated with 2 months’ notice at any point, or is it implying that it must be after the initial 12 months is up?

Before anyone says it, I know that he should have read it properly and discussed with the landlord before signing!

jjlandlord

Yes, 'determine' means 'terminate'.

I would say that the clause you quoted indeed allows the tenant to terminate the tenancy at any time by serving 2 month notice to expire at end of a calendar month.

It makes no sense for the landlord to include such clause, IMHO. I guess this is yet another example of DYI contract drafting done wrong (or gone very well in this case if you are the tenant ).

G_M

I suspect the intention of this clause was to require 2 months notice once the initial 12 months was up. However,

1) since the tenancy explictly says it will become a SPT, only 1 months notice would be required (so the clause is meaningless)

2) it is worded so openly that in fact it applies during the 12 month fixed term

So yes, it is a Break Clause. Notice could be given at any time, even during the first week of the tenancy.

A Contractual Periodic Tenancy would have made more sense since the 12 months fixed term is effectively negated.

Of course, my suspicion about intention is just that - a suspicion. Perhaps it does exacly what the landlord intended.

MSaxp

Just make sure that the clause in question is not under some paragraph headed : "determining the end of tenancy outside the fixed term"

G_M

MSaxp wrote: »

Just make sure that the clause in question is not under some paragraph headed : "determining the end of tenancy outside the fixed term"

Good point.

jbmadd

Thanks for your replies.

The clause is under the heading "General" so it appears to be valid. I agree that the intention is ambiguous.

Interestingly, I did a quick Google search of the last clause and found the whole template tenancy agreement on a website about buy-to-lets. I assume the landlord just found this template online and used it without getting advice as it's virtually unchanged.

jjlandlord

It doesn't really matter what the original intention was or was not.

The drafting of the clause is clear so there is no ambiguity as to what it means and thus as to what the tenant is entitled to do.

System

However

without prejudice to the rights and remedies of either party against the other in respect of any antecedent claim or beach of obligation

appears to give the LL the options to chase the renter for monies due for terminating before the end of the fixed contract

jjlandlord

!!!!!! wrote: »

However appears to give the LL the options to chase the renter for monies due for terminating before the end of the fixed contract

Of course not.

This is a very standard wording which means that, while the notice will end the tenancy, it will not end any previous liability.
E.g. if tenant hasn't been paying the rent and is in arrear he will remain liable to pay up even after the notice's expiry.

In addition, using the break clause is obviously not a breach of contract, and there is no "monies due" for doing so (though I suppose a clause could specify a fee being due).

jbmadd

Thanks again for your responses.

Allow me to complicate things by explaining a bit more about the actual situation.

My friend is living in the property with his ex-partner. His ex-partner is the only one who actually signed the lease and at the time gave the impression that it was for 6 months. My friend informally agreed to stay for 6 months and pay a portion of the rent.

Now my friend has found somewhere else to live and would like to move out early. However, his ex-partner is saying that he agreed to stay 6 months so he must stay. My friend thinks this is unfair since his partner could end the contract at any time (if the break clause is enforceable), but he is being forced to stay for at least 6 months. As far as I know, his ex intends to stay on alone for months 6-12.

Now, if it were me, I would probably have read the contract and agreed with that I would be subject to the same terms as the signer (ie if the person who signed the lease has the right to leave with 2 months’ notice, then so do I).

harrys_dad

So does your friend have a contract at all, with anyone? If he is not on the lease he is not a tenant it seems to me, and you give the impression that any agreement with his ex is verbal only, so he can walk out now. I stand to be corrected by others more knowledgeable.