Notice period required...advice needed please

blue_eyes777

Dear all,

My current AST has a break clause inserted. I asked my letting agent to make it a 6 month break clause. The AST started on April 4th 2017 and it expires 3rd April 2018. However, on reviewing the document today, I was confused by the following clause relating to the break:


"(12.7) The Landlord may serve not less than two months' notice in writing at any time after the first four months of the Term of his intention to determine this tenancy then on the expiry of this notice the tenancy shall be determined and the Tenant may serve not less than one months' notice in writing at any time after the first six months of the Term of his intention to determine this tenancy then on the expiry of this notice the tenancy shall be determined "

So - with reference to this clause:

What is the latest date to give notice to activate the clause before the tenancy moves to the end of the 12 month agreement. Is it August 3rd? If no notice is given by either side does this mean that the agreement cannot be terminated until April 2018? Or is this a rolling break clause of i month's notice after the first 6 months?

I am grateful in advance of any advice!

saajan_12

LL can serve 2 months notice ANYTIME after 3rd August 2017 to terminate the tenancy. If you do not vacate they have to apply to court for a possession order. Earliest expiry date is 3rd October 2017.

Tenant can serve 1 months notice ANYTIME after 3rd October 2017 to terminate the tenancy and move out within 1 month. Earliest expiry date is 3rd September 2017. You don't need to serve notice to leave at the end of the fixed term i.e. 3rd April 2018.

The word 'month' is fairly arbitrary, in that it can be interpreted to mean 'tenancy period' i.e. notice would have to expire on the 3rd of a month, or it could mean 'calendar month' i.e. notice expires anytime, and presumably rent is pro rata'd. In this case, the use of the word 'anytime' I would lean towards 'month' meaning 'calendar month' but both could be argued, or it could go in favour of the party who didn't draft the agreement, i.e. the tenant.

00ec25

the way that is written it is rather generous to the tenant

for the LL: no LL can serve notice during the first 6 months of any tenancy, so the clause for the LL is as you'd expect, he cannot serve notice which ends before the exact end of the 6th month. Thereafter it is a rolling date, always provided that it gives 2 months notice. Obviously the contract expires on 3 April 18 and, as normal, the LL would need to give 2 months notice if he does not wish to renew it.

for the tenant: the clause is slightly ambiguous in that "after the first 6 months" may mean that one motnhs notice would then end at the start of month 7 as the earliest possible date. However, a court would regard that as unfair since the LL's notice can end at the end of month 6. So on that basis the tenant's clause would be harmonised with the LL's, thus any notice served by the tenant must give 1 month's notice on a rolling basis with the first available date for the end of that notice being at the end of month 6

as regards the end of the 12 month fixed term, if no notice is given by either side then the normal rules apply:
for the tenant the contract ends when it ends, on 3rd April 2018. No notice is required since that is the end of the contract
for the LL the situation is different, if the LL does not give 2 months notice of intention not to renew then the contract automatically rolls over into a statutory periodic tenancy

read GM's guide on what happens when an AST ends: http://forums.moneysavingexpert.com/showpost.php?p=67759913&postcount=4

blue_eyes777

Thanks for the advice.

My stars! I asked the agent for a 6 month break clause thinking that it would be a standard one where if it is not activated after month 4 then the determination of the tenancy would be after 12 months!

Does anybody feel that the agent has misinterpreted what I asked for?

blue_eyes777

Does this mean that the tenant can give one month's notice after 6 months - anytime up to April 3rd 2018? I.e. give notice in October to leave in November, December to leave in January, etc?

This is going to cause me a lot of uncertainty if so!

G_M

blue_eyes777 wrote: »

Does this mean that the tenant can give one month's notice after 6 months - anytime up to April 3rd 2018? I.e. give notice in October to leave in November, December to leave in January, etc?

This is going to cause me a lot of uncertainty if so!

Yes.

I asked the agent for a 6 month break clause thinking that it would be a standard one where if it is not activated after month 4 then the determination of the tenancy would be after 12 months!

Does anybody feel that the agent has misinterpreted what I asked for?

It depends exactly how you worded your request. The LL/agent may have thought you wanted full flexibility to end the tenancy at any time after the halfway point!

Your original post here said: "I asked my letting agent to make it a 6 month break clause." which does not make your intention clear.

saajan_12

blue_eyes777 wrote: »

Does this mean that the tenant can give one month's notice after 6 months - anytime up to April 3rd 2018? I.e. give notice in October to leave in November, December to leave in January, etc?

This is going to cause me a lot of uncertainty if so!

Yes.

This gives you uncertainty as the other party can terminate at various dates, but also flexibility as you are able to terminate at various dates.

The time to check this was before you signed this. However next time, make sure the break clause specifies that the tenancy can be terminated ON x date by giving no less than y months notice.

blue_eyes777

Hi again and thanks for the replies.

Interestingly, the tenant has now actually given notice! She wants to leave on October 3rd - a month early as she has found another property BUT wants to pay rent up until the 3rd November - as stipulated by the contract.


Does this mean that I can move back in or otherwise rent this property to another party despite the tenants still paying rent? That is can she surrender possession and still pay rent?

00ec25

blue_eyes777 wrote: »

Does this mean that I can move back in or otherwise rent this property to another party despite the tenants still paying rent? That is can she surrender possession and still pay rent?

the tenant has exclusive use of the property under the terms of their tenancy until the end date

the end date is not the date they physically stopped living there if they move out before the actual end date, which is of course the date specified as per the notice period

you have accepted the tenant's notice and have agreed an end date.... no you cannot move in before that date and no you certainly cannot give "exclusive possession" to a new tenants by allowing them to move in and charging then rent which overlaps that already payable by your ongoing tenant.

if you deem that she has surrendered possession (eg she returns the keys) then you must refund any overpaid rent

blue_eyes777

Thanks for your reply. It does seem to be different to this answer found at this link:
http://www.landlordlawblog.co.uk/2015/02/19/can-tenants-move-out-early-after-giving-notice-or-have-they-got-to-remain-in-the-property/

or is it me misunderstanding the situation?

blue_eyes777

I see. So even though the article states "Then once you have moved out, return the keys to the landlord or his agent along with any remaining rent outstanding and confirm (in writing) that you have now vacated..." which means that even though they won't have the keys, I cannot be in possession. Does this mean that even though they won't have the keys, they are still in possession even though they can't get access without the keys?

Sorry to sound obtuse! You see, I don't think I will be getting new tenants so I am concerned about the house sitting empty.