Help - landlord refusing to accept notice to terminate flat rental

saver_ali

My son and his girlfriend are renting a flat but want to give notice. They attempted to do this but have been told that they cannot leave until the end of the lease, unless they find a replacement tenant. The original agreement was for 12 months, from 1/9/19 to 31/8/20, and they had a break clause, if they gave 2 months notice. They renewed for another 12 months, as was confirmed in a memorandum of agreement on 1/9/20.
The landlord’s reply to giving notice was:

Unfortunately the property managers have advised that they would not be able to agree to end your tenancy any earlier than the end of your lease.
Upon checking your Renewal Agreement we can see that no break clause has been agreed, meaning that we could not accept notice to vacate until the end of your lease on the 31st August 2021.

However, I think this is wrong, but would like others’ views on this.

The memorandum of agreement says:

The Landlord and the Tenant agree that the tenancy created by the Tenancy Agreement shall be renewed for a further term of 12 months from and including 01/09/2020 until 31/08/2021 on the same terms and conditions save for the following:

1. The rent for the new period is £1,595.00 (ONE THOUSAND FIVE HUNDRED AND NINETY FIVE POUNDS ZERO PENCE.) per calendar month.

2. The rent shall be payable on the 1st day of each month for the term of the tenancy with effect from 01/09/2020.

The original tenancy agreement said:

18.2 Mutual Break Clause

The Tenant agrees that the Landlord has the right to terminate the Tenancy after the first nine months by giving the Tenant not less than two months notice in writing to end the Agreement, so that such notice expires at the end of a relevant period, being the day before the rent normally falls due. 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.

The Landlord agrees that the Tenant has the right to terminate the Tenancy after the first nine months by giving the Landlord not less than two months notice in writing to be sent by first class post or hand delivery to XXXX Residential Limited, [address] to end the Agreement. To avoid any doubt between the parties it is agreed that the notice period cannot commence any earlier than 1st April 2020 and cannot expire any earlier than 31st May 2020. Such notice must expire at the end of a relevant period, being the day before the Rent normally falls due.

Upon the expiry of this notice this Agreement shall cease except that either the Tenant or the Landlord 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 contract which is subject to this break clause.

My interpretation of this is that my son was able to give 2 months notice as long as the termination date was no earlier than 31/5/20. Nothing in the memorandum of agreement changes this. As the memorandum of agreement does not mention break clauses, then surely the terms of the first agreement applies?
Thank you.

AdrianC

The tenant signed a new 12mo tenancy in September 2020... and you think the break clause from the previous tenancy saying notice is acceptable from April 2020 still applies...?

C'mon...

At most, it could be argued that the 9mo break clause carries forward - so the earliest they can give notice is April 2021. Which isn't yet.

If they didn't want a 12mo tenancy until September 2021, why didn't they just go onto a periodic tenancy?

saver_ali

AdrianC said:

The tenant signed a new 12mo tenancy in September 2020... and you think the break clause from the previous tenancy saying notice is acceptable from April 2020 still applies...?

C'mon...

At most, it could be argued that the 9mo break clause carries forward - so the earliest they can give notice is April 2021. Which isn't yet.

If they didn't want a 12mo tenancy until September 2021, why didn't they just go onto a periodic tenancy?

Thank you for your comment. It is helpful to hear your interpretation of the clause. Being able to give notice before 1st April would at least be better than nothing. They were initially told that over the phone, but the landlord changed their minds when notice was actually given.

A periodic tenancy wasn’t offered to them. Very sad family circumstances have prompted the need to move out as soon as possible. 

[Deleted User]

saver_ali said:

AdrianC said:

The tenant signed a new 12mo tenancy in September 2020... and you think the break clause from the previous tenancy saying notice is acceptable from April 2020 still applies...?

C'mon...

At most, it could be argued that the 9mo break clause carries forward - so the earliest they can give notice is April 2021. Which isn't yet.

If they didn't want a 12mo tenancy until September 2021, why didn't they just go onto a periodic tenancy?

Thank you for your comment. It is helpful to hear your interpretation of the clause. Being able to give notice before 1st April would at least be better than nothing. They were initially told that over the phone, but the landlord changed their minds when notice was actually given.

A periodic tenancy wasn’t offered to them. Very sad family circumstances have prompted the need to move out as soon as possible. 

 Periodic tenancy isn't offered it just happens if you don't renew your initial tenancy 

moneysavinghero

Periodic tenancy does not need to be offered. Just don't sign a new contract and they would have automatically gone onto one. The Letting Agent has done them over.

Chandler85

Most agencies (not necessarily landlords) don't offer or make tenants aware of periodic tenancies because then they can't charge a big fat new tenancy fee.  They claim the landlord doesn't accept them etc etc, every excuse under the sun,

They could done nothing and it would have happened automatically and felt very sorry for agency not being able to afford Champagne this year, only Prosecco.

saver_ali

Thanks for the various comments. We didn’t know about periodic tenancies. You live and learn. 

So is their best option to push for the termination date of 31st May? 

Scotbot

How quickly will it be let? Your best option may be to find another tenant. Ask the agency how much it will cost to advertise it,  you would be paying the fees Then talk to the landlord  as long as they are not out of pocket they should be Ok with it

saver_ali

Scotbot said:

How quickly will it be let? Your best option may be to find another tenant. Ask the agency how much it will cost to advertise it,  you would be paying the fees Then talk to the landlord  as long as they are not out of pocket they should be Ok with it

We don’t know how long it might take to let it. As you can tell we’re all novices with all this! I don’t know whether people will be clamouring to move in to London in the current circumstances. 

I suppose that they could advertise and see if there’s any uptake. They have about 4 weeks before they would have to give formal notice if the landlords would agree to a May 31st termination.

saver_ali

I’m wondering if the landlord is not honouring their original verbal confirmation that my son could leave on 31st May because the demand for London flats is low during lockdown.

youth_leader

The sticky at the top has lots of useful links for tenants, I'm sorry your son didn't know about the automatic rolling monthly contract.