Break Clause assistance

FutureGirl

My mum has lived in her property for a few years but not wants to leave.

She has a break clause.

The termination clause states;
The tenant or the landlord shall have the right to terminate the tenancy at anytime from the end of the first 6 month period by giving the other party not less than 2 calendar months notice in writing to expire on a rent due date. Such termination shall not affect the rights and obligations of either party in respect of any prior breach of this agreement.

The tenancy was signed on 13th March 2017.
Rent is paid every 4 weeks (housing benefit) and she then pays a substantial top up, which is due every 4 weeks. The first rent is due 13th March 2017.

Now, my interpretation is that after 6 months she can leave any time.. hence the 'anytime' in the clause. I also interpret it that she can give notice 4 months in, to leave at the 6 month point.

So, as the notice needs to expire on a rent due date, and the 6 months point is 13th September, if she gives notice on 31st July (a rent due date), to leave on 25th September (so after the 6 month point, and a rent due date) - then this will all be OK?

Or is it that because the tenancy says 2 calendar months to end on a rent date, so if the rent is due on 25/09, we can't give 2months notice now, but we can for Octobers rent due date, so as long as we give notice by 23/08?

Does this all make sense?

anselld

2 calendar months notice to expire on 25th Sept would need to have been served on 25th July so no, not OK.

G_M

6 months from 13th March is 12th Sept, so that is the earliest the tenancy can be ended via the BC.

Assuming 25th Sept is a rent due date (sorry - I can't be bothered to count 4 week periods forwards from 13th March), then 2 calender months before that is 25th July, so notice could have been served on or before 25th July. Was it?

If not, notice served now would permit the tenacy to be ended on 23rd October (4 weeks later).

Just a thought: what is the exact wording in the tenancy agreement regarding the rent? I know it is being paid 4 weekly by HB (and topped up), but that does not mean it is neccessarly due 4 weekly......

FutureGirl

Hi, sorry the actual wording in the tenancy regards to rent states;
"The rent is £300 per week payable every 4 weeks by equal instalments. The first payment being due on 13/03/2017"

We have given notice which was dated 28/07, to end on 23rd October, which is a rent due date.

The agency are saying that the notice we have given is incorrect. However I feel we have given them more than the required notice?

Agent is saying because the tenancy agreement was signed on 13th of the month, that the '2 calendar months notice' has to start on the 13th of the month. He has said this is 'the law'. But, the termination clause states;

"The tenant or the landlord shall have the right to terminate the tenancy at anytime from the end of the first 6 month period by giving the other party not less than 2 calendar months notice in writing to expire on a rent due date. Such termination shall not affect the rights and obligations of either party in respect of any prior breach of this agreement"

So how can it be 2 calendar months, plus ending on a rent due date, when the dates don't match?

Therefore is the notice we've given correct?

Notice was given 28/07, received by the landlord on 02/08, and by the agent on 01/08 (we sent notice to both of them via recorded delivery). The notice period ends 23/10/17 (which is a rent due date) and in my eyes, this is correct and we've given them an additional 2 weeks notice?

Am I wrong here?

Guest101

Has she signed a new tenancy every 6 months / year?

FutureGirl

Guest101 wrote: »

Has she signed a new tenancy every 6 months / year?

Not sure of the relevance?

She signed this tenancy on 13/03/2017, she has lived in the property 2.5 years now. This is the second tenancy at this address, the first one was for 24 months. The agency were then 4 months late in providing her with a new agreement.

00ec25

FutureGirl wrote: »

We have given notice which was dated 28/07, to end on 23rd October, which is a rent due date.

The agency are saying that the notice we have given is incorrect. However I feel we have given them more than the required notice?

Agent is saying because the tenancy agreement was signed on 13th of the month, that the '2 calendar months notice' has to start on the 13th of the month. He has said this is 'the law'. But, the termination clause states;

it is 100% certain that the agency has not actually read your contract and is blindly going on the "normal" situation where notice would be timed for the tenancy period and rent would be payable per calendar month, not per 4 weeks. letting agent staff are not tenancy lawyers, they need no knowledge or understanding of tenancy law and as seem many times on this forum, they make mistakes because of that. The agency has failed to understand that after Sept the tenancy is not a Statutory periodic tenancy, it is instead a Contractual Periodic Tenancy wherein there is a clause which specifically sets out terms by which the LL or the tenant can end it. That is what makes it a CPT and is thus why the agency is wrong since what they say would be (mostly) right if it were an SPT, but it isn't.

However, you have made the classic mistake of thinking that the start and end dates of the first 6 month period (the "fixed term") are the same, they are not. If it ended on the 13th Sept that would make the period 6 months + 1 day long. A 6 month period starting 13 March would end on 12 Sept.

the agency is wrong

After the end of the 6 month period the agreement appears to establish what is called a Contractual Periodic Tenancy, ie it expressly has a contract clause which explains how the tenancy can subsequently be ended after that fixed term. The how is, as you have correctly identified, by giving notice that ends on a rent due date but allows for at least 2 calendar months before that due date

the rent due dates are: 13/3, 10/4, 8/5, 5/6, 3/7, 31/7, 28/8, 25/9, and 23/10.

you are correct therefore that notice expiring on the rent due date 23/10 needs to be given on or before 22/8 in order for there to be 2 calendar months before that rent due date

Having said that the contract clause is badly worded anyway since if notice ends on a rent due date that implies you can still be there on that date, in which case technically speaking your final occupation period would be 4 weeks + 1 day long and you'd owe 1 day's rent. I doubt however the agency will spot that technicality given their apparent blindness.

(likewise it is now too late to give notice ending on 25/9 since that would need to be given before 25/7)

00ec25

FutureGirl wrote: »

Not sure of the relevance?

She signed this tenancy on 13/03/2017, she has lived in the property 2.5 years now. This is the second tenancy at this address, the first one was for 24 months. The agency were then 4 months late in providing her with a new agreement.

he is double checking that the tenancy signed on 13 March with a fixed term to 12th Sept is the current tenancy document and therefore its clause relating to the period after that fixed term is the applicable clause by which she can end the current agreement.

FutureGirl

The tenancy is a 12 month tenancy with a 6 month break clause, it isn't a 6 month tenancy. EDIT - Just re-read where it's now a contractual tenancy, doh!

I am confident the notice given is more than adequate for leaving in October. I guess I just needed reassurance.

The agent was trying to say that because the tenancy was signed on the 13th, that the notice had to be given on the 13th (What!?!?), I told him he was wrong but apparently it's '"the law".

Anywho he has passed the notice and the tenancy on to his solicitors, who I am sure will come back and say there are no issues with the notice.

Thanks guys. Damn I love this forum.