AST break clause for landlord but not tenant

Lummoxley

My daughters friend entered a 12 month AST a couple of months ago just before lockdown. As with many people her circumstances have changed considerably and she wants to move back to her family due to financial considerations. I'm presuming she should negotiate with her landlord to end the tenancy early. If they refuse I noticed in the tenancy agreement that the landlord has a break clause @ 6 months but there isn't a similar clause for the tenant. Is this an unfair contractual condition as it's one-sided?

theartfullodger

Yes it's unfair and unenforceable by Landlord.  But yes, try and negotiate.

Artful, Landlord

dimbo61

Your daughter's friend should quote the break clause back to the landlord and check where he got the tenancy agreement from.
Perhaps Google the first couple of lines of the TA to see what comes up.
She/He could then point out the TA is illegal as it has unfair T and C,s 

theartfullodger

It's not illegal, just unenforceable.

If a tenancy says tenant must cut grass north/south even weeks in year but east/west in odd weeks in year that's unenforceable (and indicating a looney Landlord) but not illegal.

Unless you have evidence otherwise, if so and genuine £25 to an agreed housing charity

grumiofoundation

dimbo61 said:

Your daughter's friend should quote the break clause back to the landlord and check where he got the tenancy agreement from.
Perhaps Google the first couple of lines of the TA to see what comes up.
She/He could then point out the TA is illegal as it has unfair T and C,s 

But how does that help the OP? 

The TA is not "illegal" because terms in it are unenforceable. 

grumiofoundation

Lummoxley said:

My daughters friend entered a 12 month AST a couple of months ago just before lockdown. As with many people her circumstances have changed considerably and she wants to move back to her family due to financial considerations. I'm presuming she should negotiate with her landlord to end the tenancy early. If they refuse I noticed in the tenancy agreement that the landlord has a break clause @ 6 months but there isn't a similar clause for the tenant. Is this an unfair contractual condition as it's one-sided?

As said yes unenforceable. unfortunately however this is unlikely to mean your daughters friend can use the break clause, but that the landlord could not exercise theirs (Maybe I'm wrong - I'm sure a more knowledgable poster will correct this is wrong). 

Probably worth checking if deposit has been protected, EPC served etc

But as suggested best thing to do is negotiate - landlord wont want the property 'occupied' if no rent is coming in so likely can come to an arrangement. 

Lummoxley

Thanks everyone, it's a large corporate landlord so tea & cake probably won't wash but hopefully they won't respond with "computer says no".

greatcrested

There is a legal theory that where a contract is vague or ambiguous, interpretation is made to benefit the party who did not draw up the contract - so to benefit the tenant here since the landlord draw up the contract.

There is therefore a tenuous argument for saying the tenant should be given the same right to a Break Clause as the landlord has.

But I agree with others that the more likely legal ruling would simply be that the LL's right to a BC is unenforceable.

Might be worth presenting that argument to the LL though - they might agree and allow the tenant to activate a BC.

That's, of course, if tea and cake has failed.

princeofpounds

The landlord's break clause is an unfair condition in a consumer contract as it is one-way. 
The lack of a break clause for the tenant is not unfair.
https://www.gov.uk/government/publications/unfair-contract-terms-cma37
The standard legal treatment for unfair clauses is that they are basically deemed void, as if they didn't exist. Therefore the landlord loses their break power, but the tenant does not gain it.

The only way to end the contract early is through negotiation. Many landlords will agree to let a tenant depart if they can mitigate their losses by finding a new tenant and having the re-letting costs covered by the departing tenant. They don't have to do this, but having a disgruntled and/or struggling tenant in place can be perceived to be a bigger risk than having a new tenant in. So it's worth the discussion, but it has to be approached from that kind of angle. 

steampowered

Realistically, the landlord may agree to re-market the property, but the young lady will be liable for the cost of that and for rent incurred until new tenants are found.

Lockdown will be ending in the near future so query whether she might want to be coming back to the flat soon anyway?

saajan_12

greatcrested said:

There is a legal theory that where a contract is vague or ambiguous, interpretation is made to benefit the party who did not draw up the contract - so to benefit the tenant here since the landlord draw up the contract.

There is therefore a tenuous argument for saying the tenant should be given the same right to a Break Clause as the landlord has.

Don't really buy this one for this case - the agreement isn't vague, its clearly stating only LL has the option of terminating early. We / a court may think its unfair, but it wasn't unclear on what the intention was.