Break clause tenancy question

Miss_Samantha

thesaint wrote: »

The only point I am making is that the break clause doesn't hold equal weight for the landlord as it does the tenant.

But it does!

thesaint wrote: »

It allows the landlord to start proceedings to bring it to an end.

Ah here's your confusion, then.

A break clause ends a (fixed term) tenancy.

A notice under s.21 allows to start possession proceedings so as to evict the tenant and obviously end the tenancy at that point.

thesaint

Miss_Samantha wrote: »

Ah here's your confusion, then.

A break clause ends a (fixed term) tenancy.

That I didn't know.
So once a break clause is activated by a landlord, the tenancy comes to an end.

I could see how a break clause could circumvent the need to give two months notice in that case.

Edit: It seems the landlord still has to give at least two months notice. I really don't see how this is equal.

Edit 2: Can you point me to where it says a landlord activating a break clause ends a tenancy?

thesaint

Okay, after digging around, I see what you are saying.

The landlord can activate the break clause, and if the tenant is still there at expiry, the tenant would be on a periodic tenancy.

I can see why I have never used them.

G_M

Look at it this way, putting aside for a minute the 6 minimum months before a S21 can expire, a S21 also cannot expire during a fixed term tenancy.

If the fixed term is 12 months, a S21 dated to expire after 6 months would be invalid. So the LL must first end the 12 month tenancy, by activating the Break Clause.

But reversing this, if the LL simply activates the Break Clause to end the tenancy, the tenant can remain (on a periodic), since the LL would be unable to get a court possession order. Ie The LL still has to use a S21 in order to gain possession.

So the LLmust do 2 things:
1) activate the BC and give at least 2 months notice. In the OP's case, this can be done at any time, provided the notice expires after the 6month minimum.
2) serve a S21 Notice. Under the new Dereg Act, this cannot be done during the 1st 4 months. And under the old Housing Act, it cannot expire before 6 months (as indeed the BC in this case).

In reality, the BC does "hold equal weight for the landlord as it does the tenant", since both can end the tenancy at/after 6months. The only difference is that the tenant needs to write one letter giving notice while the LL needs to both write a letter and serve a S21.

Simples.

always_sunny

it's a 6 months break clause with 2 months notice.
so after 4 months you have started the AST you can give 2 months notice and leave on month 6.
(or give notice on month 5 to leave on month 7, etc)

G_M

always_sunny wrote: »

it's a 6 months break clause with 2 months notice.
so after 4 months you have started the AST you can give 2 months notice and leave on month 6.
(or give notice on month 5 to leave on month 7, etc)

Good grief!

After 15 complex posts, you've summed it up perfectly for the OP!

Miss_Samantha

Except that always_sunny adds a restriction that isn't in the break clause.

The break clause is clear, there's actually no explaining to do.

martindow

always_sunny wrote: »

it's a 6 months break clause with 2 months notice.
so after 4 months you have started the AST you can give 2 months notice and leave on month 6.
(or give notice on month 5 to leave on month 7, etc)

Isn't the break clause more flexible than this allowing the tenant to give 2 months notice to end on any date between 6 and 12 months from the start of the tenancy? I don't think it requires it to align with dates of the tenancy.

Kynthia

martindow wrote: »

Isn't the break clause more flexible than this allowing the tenant to give 2 months notice to end on any date between 6 and 12 months from the start of the tenancy? I don't think it requires it to align with dates of the tenancy.

Unless the tenancy allows for pro-rata rent the tenant would still need to pay for a whole tenancy period at a time, unless the landlord agreed otherwise. So the flexibility isn't that useful on its own.

theartfullodger

thesaint wrote: »

That I didn't know.
So once a break clause is activated by a landlord, the tenancy comes to an end.

I could see how a break clause could circumvent the need to give two months notice in that case.

Edit: It seems the landlord still has to give at least two months notice. I really don't see how this is equal.

Edit 2: Can you point me to where it says a landlord activating a break clause ends a tenancy?

Appreciate this wasn;t asked of me but...

a) Deciding if a break clause - and, more importantly, whatever notice is used to exercise it, and the method of service of said break clause notice - is valid is for a judge to decide (as in all things) but given the difficulties with break clauses it is unwise to be absolute about any particularly worded break clause being valid... Further,
- we haven't seen the proposed wording of the notice to exercise it.. &
- we don't know how landlord proposes to serve said notice...

b) If notice required in break clause is less than statutory notice required (normally 2 months but not always, particularly post 01/10/2015..) then a valid notice would merely end the fixed term, leading to subsequent periodic tenancies requiring s21 etc to end...

As a landlord it seems so much simpler to just grant 6 month fixed terms rather than expose the security of one's investment to the vagaries of wording a judge has usually not ruled on yet...