Mutual Break Clause

Novalp

My wife and I want to cease our tenancy, which began on and includes 15 May.

We've been scrutinizing the AST clauses on interrupting or ending the agreement. There is a Mutual Break Clause that reads:

"Any time after four months of the initial fixed term of this tenancy (or after a similar period following a fixed term extension to the original tenancy) either party may invoke this break clause by providing a minimum of two months written notice to the other (such notice to expire on the last day of a rental period of the tenancy). At the end of such notice the tenancy shall end and all obligations and responsibilities shall cease; subject nevertheless to any claim by either party against the other in respect of any breach of any of the terms and conditions of the agreement."

We'd appreciate advice. Have we got this correct: since our tenancy commenced on 15 May, four months would mean 15 May through 14 September. Today being 15 September is the first day of the fifth month of the tenancy (now having completed the required four months minimum).

Can we today write to our landlord to advise that we are invoking the mutual break clause? Is it as simple as that? Can the landlord refuse to honour this clause (perhaps claiming a breach of Ts&Cs of the agreement)?

This should allow us to end the tenancy on 14 November, before the 15 November, right?

And if the landlord does accept, can our last rent payment be made in October (we pay before the fifteenth day of each month), to cover the period until 14 November (hopefully the last day of our tenancy)?

Your advice greatly appreciated.

theartfullodger

(Assuming tenancy is at least 6 months...) then current "last day of a rental period" would be end of initial fixed term. When is end date of initial fixed term, please? (eg if it was a 2-year deal that would be 14/05/2019...).

Like so many break clauses, this one could be improved upon.. (apologies for my arrogance...).

G_M

Unlike artful, I'm going to assume you have a 12 month fixed term (or longer). The break Clause as written would be pointless in a 6 month fixed term.

Novalp wrote: »

"Any time after four months of the initial fixed term of this tenancy (or after a similar period following a fixed term extension to the original tenancy) either party may invoke this break clause by providing a minimum of two months written notice to the other (such notice to expire on the last day of a rental period of the tenancy). At the end of such notice the tenancy shall end and all obligations and responsibilities shall cease; subject nevertheless to any claim by either party against the other in respect of any breach of any of the terms and conditions of the agreement."

...: since our tenancy commenced on 15 May, four months would mean 15 May through 14 September.
Correct
Today being 15 September is the first day of the fifth month of the tenancy (now having completed the required four months minimum). Correct

Can we today write to our landlord to advise that we are invoking the mutual break clause? Yes
Is it as simple as that?
Yes (but clearly state the date you intend the tenancy to end)
Can the landlord refuse to honour this clause (perhaps claiming a breach of Ts&Cs of the agreement)? No.

This should allow us to end the tenancy on 14 November, before the 15 November, right?
Hmm.. If you write today (15th Sept) how/when will you serve?
If you post, service will be 2 working days ie 19th Sept.
Or you could hand deliver tomorrow (16th sept)
16th Sept to 14th Nov is less than the required 2 months notice.....
19th Sept to 14th Nov is even less.

And if the landlord does accept, can our last rent payment be made in October (we pay before the fifteenth day of each month), to cover the period until 14 November (hopefully the last day of our tenancy)?
Yes. If the LL accepts....

As artful says, poorly drafted. I suspect the intention was for a requirement for 2 months notice, and an earliest termination date of after 6 months. But since notice cannot be served until the 4 month point, timing is extremely tight to achieve termination at 6 months.

If it had been drafted simply to require 2 months notice not to expire earlier than 6 months, then notice could be served at any time during the 1st 4 months to end the tenancy after 6 months.

Novalp

I should mention that we actually discussed with our landlord, when we moved in, how to terminate the tenancy early, in case our jobs took us elsewhere, and would we be bound to paying for a whole twelve months (fixed term). Landlord explained that after four month, we could give a two month notice, so the minimum would be six months, but now that we're doing it, it feels a little too simple.

G_M

It depends how legalistically the LL decides to interpret his Break Clause.

He may, as I demonstrated above, reject your termination date on the grounds that it is less than 2 months notice. You could then counter-argue and ultimately only a court could decide how to interpret the Break Clause.

But it sounds like your LL is reasonable, and you had a friendly understanding which he simply drew up poorly in writing. In which case he is likely to accept your notice without question.

Let us know!

Novalp

The fixed term of 12 months began on and includes 15/05/2017 through to and including 14/05/2018. LL accepted an email on 15 September as notice of wishing to vacate on 14 November 2017.

LL sent a letter called 'Tenant Notice to Vacate'. Letter reads: "We would be grateful if you could complete both copies, send one back to us and keep a copy for your own records. This letter confirms in the proper format your intention to vacate the property."

While this sounds official, and the actual notice seems to make sense, the tenancy agreement makes no mention of such a notice being necessary; therefore do we actually have to sign it?

There is a paragraph that stopped us from signing, which reads: "I understand that my Tenancy Agreement requires a minimum of TWO MONTHS [LL handwriting] month's notice before I move. In [sic] understand that I am responsible for paying the rent through, the earlier of (1) the end of the current tenancy (2) the end of the required notice period as per the Tenancy Agreement (3) until another tenant approved by the Landlord has moved or begun paying rent."

Here's our questions:
1. do we have to sign and return this 'notice to vacate'? It seems like we're agreeing to pay rent until another tenant moves in and begins paying? Or does the 'current tenancy' (1) end on 14 November 2017, as per our notice via email and acknowledged in LL letter ("Thank you for your email dated 12 September 2017 [we sent it on 15 September] informing us of your notice to vacate the above address on 14 November 2017.") and therefore we are only agreeing to pay up until 14 November 2017?

This is from the TA and seems to mean that our obligations and responsibilities (subject to any claim by either party etc.) shall cease - doesn't that include paying rent? It reads:
"At the end of such notice the tenancy shall end and all obligations and responsibilities shall cease; subject nevertheless to any claim by either party against the other in respect of any breach of any of the terms and conditions of the agreement."

Here's the whole copy of those clauses:
Interrupting or Ending this Agreement
The following clauses set out the ways in which this agreement may be brought to an end by either party. In addition, these clauses set out the procedures which the Tenant or Landlord shall use when the tenancy is brought to an end
11.1 If the tenancy is within the fixed Term, the Landlord may serve on the Tenant the appropriate notice under Section 21(1)(b) of the Housing Act 1988 (as amended) given during the fixed Term to expire on any day after the last day of the Term.
11.2 If the tenancy has lapsed into a periodic tenancy it may be terminated by: the Landlord serving the Tenant at least two months notice in writing under Section 21(4)(a) of the Housing Act 1988 (as amended) and expiring on the last day of a period of the tenancy.
the Tenant giving written notice of at least one month and expiring on the last day of a period of the tenancy.
11.3 If there is a breach of any of the terms of this agreement by the Tenant then the Landlord may serve notice in accordance with Section 8 of the Housing Act 1988 (as amended).
11.4 If the Rent or any part thereof shall be in arrears for at least seven days after the same shall have become due (whether legally demanded or not) or if there shall be a breach of any of the obligations on the part of the Tenant, the Landlord may re-enter the Property (subject to the Landlord obtaining a Court Order for Possession) and immediately thereon the tenancy shall terminate without prejudice to any other rights and remedies of the Landlord.

Mutual Break Clause
11.5. Any time after four months of the initial fixed Term of this tenancy (or after a similar period following a fixed Term extension to the original tenancy) either party may invoke this break clause by providing a minimum of two months written notice to the other (such notice to expire on the last day of a rental period of the tenancy). At the end of such notice the tenancy shall end and all obligations and responsibilities shall cease; subject nevertheless to any claim by either party against the other in respect of any breach of any of the terms and conditions of the agreement.

ThePants999

Novalp wrote: »

There is a paragraph that stopped us from signing, which reads: "I understand that my Tenancy Agreement requires a minimum of TWO MONTHS [LL handwriting] month's notice before I move. In [sic] understand that I am responsible for paying the rent through, the earlier of (1) the end of the current tenancy (2) the end of the required notice period as per the Tenancy Agreement (3) until another tenant approved by the Landlord has moved or begun paying rent."

This is fine. The earliest of those is (2) - the end of the two months' notice you've given. This clause is actually to your (incredibly minor) benefit, since it's sort of an offer of early surrender - if you actually moved out before the end of the notice period, and agreed with the landlord that they could put new tenants in, you'd cease to be liable for rent once they moved in.