Help with tenancy clause

Monkey2801

Hello, I am trying to move out of my flat into a new house and was under the understanding I had to give one months notice but I have been told it is two.


In my tenancy it states that the fixed term is "from 23rd August 2016 to 22nd February 2017 and then the tenancy continues as a monthly contractual periodic until ended following either party giving notice. Please see clause 2.5 for important information about what you must do to end the tenancy"


Clause 2.5 Break Clause reads:
2.5.1 This agreement creates a single tenancy that starts with a fixed term and then becomes periodic. This would normally guarantee both parties the rights and obligations for the fixed term and a minimum of one period. The following two clauses allow either party to terminate the agreement earlier than that date, but not before the end of the fixed term (the date quoted in 1.6.1 as “to and including (date)”).

2.5.2 The Landlord may bring the tenancy to an end at, or at any time after, the expiry of the fixed term by giving to the Tenant at least two months’ written notice stating that the Landlord requires possession of the Property. A notice under section 21 of the Housing Act 1988 will suffice to implement this sub-clause.

2.5.3 The Tenant may bring the tenancy to an end at, or at any time after, the expiry of the fixed term by giving to the Landlord at least two month’s written notice stating that the Tenant wishes to vacate the Property. A letter will suffice to implement this sub-clause. While the tenancy is periodic the two month’s written notice must expire the day before a Rent Due Date


Am I right in thinking it cant be a monthly contractual periodic if it requires TWO months notice?


Thanks in advance and sorry for the long post!

mrginge

Monkey2801 wrote: »

Am I right in thinking it cant be a monthly contractual periodic if it requires TWO months notice?

Nope.

Two months notice.

theartfullodger

Monkey2801 wrote: »

................Am I right in thinking it cant be a monthly contractual periodic if it requires TWO months notice?....

Quite likely, yes, two months notice.

See Shelter Legal
http://england.shelter.org.uk/legal/security_of_tenure/notices/notices_to_quit/notices_to_quit_tenants

Statutory v contractual periodic tenancies

Normally, on expiry of a fixed-term tenancy protected by one of the Housing Acts (for example, an assured shorthold tenancy or a flexible tenancy), the tenancy will continue as a statutory periodic tenancy. Any clause in the tenancy agreement requiring more than the minimum notice period, as set out above, will be of no effect.


However, where the tenancy continues as a contractual periodic tenancy (for example a tenancy agreement that states it is 'for a term of twelve months and thereafter shall roll on from month to month') the tenant will be required to give a longer period of notice if there is a clause in the tenancy agreement to that effect.

But only a judge can rule on this.

bowlhead99

Bear with me on this explanation...

In the first paragraph you quoted, it says that after the fixed period mentioned it is a MONTHLY contractual periodic until ended by either party giving notice.

So, without reading more clauses you can infer that it will roll over into each monthly contractual period (not bimonthly contractual period) if not terminated.

Then you can go and have a look at the Break Clause which is to do with how you break the contract before the normal end of the fixed minimum expectation set by the rest of the contract.

2.5.1 explains that such an agreement would 'normally' guarantee the rights and obligations for fixed term ending 22 Feb '17 plus one period (ie 22 March '17 as we know the rent period is one month)... however that 'normal' expectation can be overridden by using the following paragraphs 2.5.2 or 2.5.3 as long as it still finishes on or after 22 Feb '17.

So in other words they are allowing, through the part of the contract described as the "break clause" (which is the heading they gave to the whole of section 2.5), a mechanism whereby the contract can be broken or terminated earlier than what they describe as the 'normal' guaranteed tenancy period of [fixed term of date X to date Y plus one period]:

would normally guarantee both parties the rights and obligations for the fixed term and a minimum of one period. The following two clauses allow either party to terminate the agreement earlier than that date

So, if you or your landlord want to break that minimum expectation of [date-to-date plus a period] (22 March '17)... say for example you want it to end earlier on 22 Feb '17... then one of you are going to have to follow the rules in 2.5.2 or 2.5.3 to see how to do that.

But, you don't want to break that expectation and terminate it any earlier than 22 March '17. So, you don't need to read 2.5.3 which would tell you that if you wanted, you can give 2 month's notice expiring on day before a rent date (eg expiring on 22nd Feb if you don't want to stay and pay on 23 Feb). You have no intention of breaking the basic expectation and terminating early before 22 March, in fact we are already at October.

Ergo, you don't expect to need to read clause 2.5.3 to investigate that early break. Instead, you just follow the rules of what they described in your opening preamble as a MONTHLY contractual periodic tenancy and presume that for a MONTHLY periodic tenancy should be ended by you giving them a month of notice - the length of a period. QED, job done.

Of course, in saying the above, I am deliberately reading the agreement in a way that I don't really believe the landlord wants me to read them - just the way you would like to read them.

If an agreement is not ABSOLUTELY crystal clear and someone could form an alternative view because there's nothing saying, "... For the avoidance of doubt, we mean this to be a contract that requires two rent periods notice to be given to end the contract at any time on or after 22 Feb and we are only calling it a 'monthly periodic contract' because each period ends on the 22nd of every month and not because the notice period is a month..." then you are into the territory of putting forward an argument and seeing if a judge will either buy it or tell you you're an idiot.

Half of contract law is not just what words are written in black and white on the page (usually without useful punctuation to give you a hint) but what can be assumed to be the intentions of the parties - what's the 'spirit' of the agreement if the letter of the agreement is inconsistent, contradictory or unclear.

So, what you might find is that by saying "hey, it was always explained to me as I was effectively signing month to month contract - unless I wanted to end it after only six months (ie by 22 Feb) in which case I'd have to give 2 months to help the landlord start looking for a replacement tenant" then when a judge listens to it and decides there's a slight ambiguity on what words are used or how certain clauses are named or introduced, he may apply a tenant-friendly interpretation and help out the poor defenceless tenant rather than the profit hungry landlord.

You may decide you haven't got a hope in hell of making it stick with an experienced judge who is not deliberately using all efforts to try to find in your favour. Or you may decide you have a chance of getting away with only a month but don't want to risk having to pay another month's rent for the period after you already moved out. Or you might be more ballsy and try it on to see what happens, even though you think that probably the 2.5.3 clause stands in its own and makes it two months in any circumstances.

DoaM

Does the edict of Contra Proferentem apply for tenancies? (That's what's alluded to in post #4 above).

G_M

A Break Clause can only apply during a fixed term. NOT a "fixed term of date X to date Y plus one period".

The BC by definition breaks the original Term of the contract.

What happens thereafter in any subsequent periodic tenancy is unaffected by the Break Clause.

bowlhead99

G_M wrote: »

A Break Clause can only apply during a fixed term. NOT a "fixed term of date X to date Y plus one period".

The BC by definition breaks the original Term of the contract.

What happens thereafter in any subsequent periodic tenancy is unaffected by the Break Clause.

I'd agree that although the whole of 2.5 is named as a Break Clause, it does not describe a mechanism of terminating the original term of X to Y and ceasing the rights and obligations prior to Y. It only describes a mechanism to terminate at Y, i.e. "...not before the end of the fixed term". There is no break of the original term allowed. All the clause allows you to break is the idea that the lease will go "X to Y and then continues..." by saying it doesn't have to continue at all if someone wants to stop it at 22 Feb (or 22 Mar) with the requisite two months notice in writing.

As such, once both parties *do* decide to continue it by letting it carry on to October 2017 and not using the break clause to break the minimum term, nobody needs to invoke that break clause and therefore they don't need to follow 2.5.1 or 2.5.2 or 2.5.3 (collectively described as the 2.5 Break Clause)to draw the agreement to a close. They simply need to end it with some unspecified notice for a "monthly contractual periodic" tenancy which one might reasonably assume to be a month.

The landlord would probably say, "hey, can't you read that the preamble tells you you to 'please read 2.5 for important information about what you Must Do to end the tenancy', and then 2.5.3 says you can end it by giving two months' written notice expiring on or after the fixed term on the day before a rent due date, so clearly I am expecting to months notice and that is what 'you must do to end the tenancy".

He may say that the heading "Break Clause" is of course a misnomer and is nothing to do with 2.5.3: there is no early break prior to date Y and so you should not put faith in such titles or labelling anyway, only in the actual clauses themselves. As such, he may say given the agreement points to "what you must do to end the tenancy", you should read 2.5.3 without looking at the 'break clause' label above it, and simply accept that to be the notice period ; 2 months which can be given to expire on the last day of any monthly rent period on or after Y.

Then you can say, "that's not how I read it, see you in court" - and hope it's you that has it more correct than the landlord.

Though there are of course many excellent landlords who know what they are signing (including the ones here) there are plenty that don't, and may unwittingly sign up to agreements that their letting agents thrust in front of them, and those letting agents may have made a right pigs ear of their agreements because they get someone who is not a lawyer to edit and update them from client to client.

The bottom line is that if there is ambiguity you may need to tell the landlord how you read it and that you will see him in court if he doesn't like it (after he has duly returned your protected deposit etc). Others - like posters #2 and #3 -may see no ambiguity and give him the two months.

ThePants999

Personally, I'd weigh up the likelihood of being taken to court, and the likelihood of winning, and the expected costs (financial and otherwise) of that avenue, against an additional month's rent... and I'd give two months' notice and be done with it.

Monkey2801

Thank you all so much for your replies!!