tenancy agreement and Break Clause.

JJRome

Hi, We are in the process of buying a property but we don’t know yet the day of completion. We really like to move as soon as possible. Our tenancy agreement comes to an end  next month . Estate Agent keep pushing us to let her know if we are going to stay,  but we responded saying that we don’t know yet.  But she say we are in the legal obligation of inform her with a month notice. I asked her to send me the section of the contract that says that and she point out the  “Break Clause”  with I think is not correct.

Schedule 5

Special Clauses

1.a Landlord Break Clause      

The Tenant agrees that the Landlord has the right to terminate the Tenancy after the first 6 months by giving the Tenant not less than 2 months’ notice in writing to end the Agreement.  Upon the expiry of this notice this Agreement shall cease except that either the Landlord or the Tenant can pursue their legal remedies against the other for  any breach of any pre-existing rights under the Agreement apart from the pre-existing right to a fixed term contract which is subject to this break clause. In these circumstances the provisions of clause 2.1 schedule 3 shall not apply.

2.a Tenants Break Clause 

The Landlord agrees that the Tenant has the right to terminate the Tenancy after the first 6 months by giving the Landlord not less than 1 months’ notice in writing to end the Agreement. Upon the expiry of this notice this Agreement shall cease except that either the Landlord or the Tenant can pursue their legal remedies against the other for any breach of any pre-existing rights under the Agreement apart from the pre-existing right to a fixed term contract which is subject to this break clause. In these circumstances the provisions of clause 2.1 schedule 3 shall not apply.

JJRome

So I have two questions:

1) is she right about it? Do we need to give her a month notice even if we are leaving by the end of the agreement

2) Let say my Tenancy Agreements ends September 15.  And them this week we realised completion is on September 21. Can we let her know on August 21 (one month notice before the end of current agreement) that we are leaving on September 21 (this means we will be only be 1 Week on Rolling contract) if this possible? or we have to stay another full month? hope this make sense

Slithery

JJRome said:

1) is she right about it? Do we need to give her a month notice even if we are leaving by the end of the agreement

No. If you leave on or before the last day of your tenancy then no notice is needed. Hence the name 'fixed term'.

JJRome said:

2) Let say my Tenancy Agreements ends September 15.  And them this week we realised completion is on September 21. Can we let her know on August 21 (one month notice before the end of current agreement) that we are leaving on September 21 (this means we will be only be 1 Week on Rolling contract) if this possible? or we have to stay another full month? hope this make sense

If you stay past the end of the fixed term then the tenancy will become an SPT (as long as your original tenancy doesn't say otherwise). This will require you to give 1 months notice aligning with your rental period, so your tenancy will be for at least a further month if you personally hand in notice the day your new tenancy begins, 2 months if you hand it in a day later. You cannot give notice before then as the new tenancy hasn't started yet.

Please read...

Ending/renewing an AST

steampowered

If you are currently on a fixed term tenancy, there is no need to give notice. You are not using the break clause in that situation. If you hand the keys back, the tenancy will simply come to an end when the fixed term expires.

If you are currently on a periodic tenancy, then yes you will need to give notice.

If you remain in the property after the end of the fixed term, then you will automatically move onto a periodic tenancy.

You generally can only terminate the tenancy on the end of a monthly period, not part way through the month, and have to give at least one full month's notice. That means - if you gave one month's notice on September 16 - the notice takes effect on October 15 and the tenancy will end on November 15.

You do not have a fixed completion date until you exchange contracts so be prepared for slippage.

greatcrested

As explained above.

Post 4: Ending/renewing an AST: what happens when a fixed term ends? How can a LL or tenant end a tenancy? What is a periodic tenancy?

The Break Clause you quote seems irrelevant here - it would only apply if you wished to leave before the end of the fixed term.

How long is the fixed term and what are the start and end dates?

saajan_12

JJRome said:

So I have two questions:

1) is she right about it? Do we need to give her a month notice even if we are leaving by the end of the agreement - not based on the break clauses -  that would typically apply to terminations PRIOR to the end of the fixed term. However you may need to if there are other clauses requiring notice or monetary damages to terminate AT the end of the fixed term. Read your entire tenancy agreement and quote any other mentions of notice. 

2) Let say my Tenancy Agreements ends September 15.  - you mean the fixed term ends 15th Sept (presumably)

And them this week we realised completion is on September 21. Can we let her know on August 21 (one month notice before the end of current agreement) that we are leaving on September 21 (this means we will be only be 1 Week on Rolling contract) if this possible? or we have to stay another full month? hope this make sense -  After the fixed term, the tenancy would either become a contractual or statutory periodic tenancy - check your agreement for any mention of what happens after the fixed term. If its silent, then it'll become a SPT, which means you would have to give 1 tenancy periods notice - ie 1 month long, endingon the 15th of a month. You can't just subdivide months and say pay x days rent, so you'd have to give notice on 15/16 Sept to expire 15 Oct, or if you don't get the notice in on time then pay until 15 Nov. 

Comments in bold. First step is to read your tenancy agreement, particularly for anything mentioning what happens AFTER the end of the fixed term and anything about notice periods. You may / may have a contractual obligation to serve 1 month notice before the end of your fixed term. After you fixed term, you almost certainly have to serve 1 period notice. 

JJRome

Thanks so much everyone for clarification.

I can't believed how shady some Estate Agents are. Now she is threatening me if I don't respond by next week she will send me "serving notice to end the tenancy" which is silly because before that she was looking to renew our contract for another year.

greatcrested

Options

* no response needed. Leave on/before Sept 15. No notice required as the fixed term ends on that date

* stay beyond Sept 15. A periodic tenancy arises. You then need to serve notice to end the new periodic tenancy: either 1 full tenancy period (if a SPT) or whatever the tenancy says (if a CPT) - but NOT what the Break Clause says as that is irrelevant.