Help - landlord refusing to accept notice to terminate flat rental

greatcrested

I disagree with advice above though would like to clarify.

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.

* So they did not sign a new tenacy agreement for 12 months, correct?

* they (signed? agreed?) the Memorandum renewing the original TA, correct?

The Memorandum states: "on the same terms and conditions".

The original Break Clause says: "The Landlord agrees that the Tenant has the right to terminate the Tenancy after the first nine months".

My interpretation would be that "the first 9 months" ended 31/5/20 ie 9 months after the intial TA commenced. Thereafter, the tenant could implement the BC, whether during the inital contract period, or a subsequent contract period.

Alternatively the LL /agent could argue that the 9 months now applies to the 2nd TA, and hence the BC could be implemented at 31/5/21

The LL/agent's argument that NO BC is applicable in the renewed tenancy (despite "the right to terminate the Tenancy after the first nine months") has very little legal merit.

Given the above ambiguities, a judge would be likely to interpret to the advantage of the tenant, since ambiguities are normally resolved to the benefit of the party who did not draft the ambiguous contract.

saver_ali

greatcrested said:

I disagree with advice above though would like to clarify.

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.

* So they did not sign a new tenacy agreement for 12 months, correct?

* they (signed? agreed?) the Memorandum renewing the original TA, correct?

The Memorandum states: "on the same terms and conditions".

The original Break Clause says: "The Landlord agrees that the Tenant has the right to terminate the Tenancy after the first nine months".

My interpretation would be that "the first 9 months" ended 31/5/20 ie 9 months after the intial TA commenced. Thereafter, the tenant could implement the BC, whether during the inital contract period, or a subsequent contract period.

Alternatively the LL /agent could argue that the 9 months now applies to the 2nd TA, and hence the BC could be implemented at 31/5/21

The LL/agent's argument that NO BC is applicable in the renewed tenancy (despite "the right to terminate the Tenancy after the first nine months") has very little legal merit.

Given the above ambiguities, a judge would be likely to interpret to the advantage of the tenant, since ambiguities are normally resolved to the benefit of the party who did not draft the ambiguous contract.

Thank you for that. It was how I had originally interpreted the situation, and hoped I was right. 

Do you have any suggestions as to how to play it? Could he use wording similar to yours? 
e.g. say that he has taken advice and “the first 9 months" ended 31/5/20 ie 9 months after the intial TA commenced. 

saajan_12

saver_ali said:

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 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. ...

Did they ALSO sign a new 12 month tenancy agreement? Then its that new agreement that counts.
Or was it just the original 2019-20 agreement plus a the renewal memo? 

saver_ali said:

The original tenancy agreement said:

18.2 Mutual 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.

If it was just the renewal memo, then it depends on how <renewed on same T&Cs> and <the first nine months> is interpreted. My view is a carbon copy of the old terms, just shifted by 1 year, as you're renewing not extending the fixed term. So earliest notice would be served 1st April 2021 to expire 31st May 2021. The alternative is its an extension or continuation of the previous fixed term, ie 9 months from the very start which you're passed so notice expiry would be 30th April 2021. 
I'm not convinced this is necessarily arbitrary, ultimately a judge / deposit arbiter may decide they think it clearly says one way or the other. So its a question of a month.. 

saver_ali said:

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.

The "for the avoidance of doubt" is really just extra info, not the pertinent point. You still have to abide by the actual criteria to activate the clause ie 2 months notice, expire day before Rent due, after first 9 months (whatever first means)

saver_ali said:

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.

I agree with you, this is nonsense (unless you actually signed a new tenancy agreement after the memo).  There is A break clause because the memo didn't delete it, the question is just when can it be activated. 

greatcrested

saver_ali said:

greatcrested said:

I disagree with advice above though would like to clarify.

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.

* So they did not sign a new tenacy agreement for 12 months, correct?

* they (signed? agreed?) the Memorandum renewing the original TA, correct?

The Memorandum states: "on the same terms and conditions".

The original Break Clause says: "The Landlord agrees that the Tenant has the right to terminate the Tenancy after the first nine months".

My interpretation would be that "the first 9 months" ended 31/5/20 ie 9 months after the intial TA commenced. Thereafter, the tenant could implement the BC, whether during the inital contract period, or a subsequent contract period.

Alternatively the LL /agent could argue that the 9 months now applies to the 2nd TA, and hence the BC could be implemented at 31/5/21

The LL/agent's argument that NO BC is applicable in the renewed tenancy (despite "the right to terminate the Tenancy after the first nine months") has very little legal merit.

Given the above ambiguities, a judge would be likely to interpret to the advantage of the tenant, since ambiguities are normally resolved to the benefit of the party who did not draft the ambiguous contract.

Thank you for that. It was how I had originally interpreted the situation, and hoped I was right. 

Do you have any suggestions as to how to play it? Could he use wording similar to yours? 
e.g. say that he has taken advice and “the first 9 months" ended 31/5/20 ie 9 months after the intial TA commenced. 

1) you could go back to the LL/agent and present one or other of the interpretations I suggested. The LL /agent will refuse to accept this and repeat their earlier claim. You will enter an extended, and ultimately pointless exchange of claims and counter-claims, become increasingly angry and stressed and eventually tear out your eyeballs and throw them outof your pram.

2) or you can simply act on the assumption that you are right, serve two months notice clearly referencing the break Clause, clean the property assiduously, move out, and request the return of your deposit. If /when the LL/agent either demands further rent, or makes deductions from your deposit, you refer the matter to the deposit scheme arbitration process, or refuse to pay rent and see if they take legal action which you defend.

saver_ali

saajan_12 said:

I agree with you, this is nonsense (unless you actually signed a new tenancy agreement after the memo).  There is A break clause because the memo didn't delete it, the question is just when can it be activated. 

Thank you for all that. All very helpful They only signed a memorandum at renewal, not a new tenancy agreement. 

We now feel more confident to push back and see if we can come to an agreement with the landlord amicably. 

saver_ali

greatcrested 

1) you could go back to the LL/agent and present one or other of the interpretations I suggested. The LL /agent will refuse to accept this and repeat their earlier claim. You will enter an extended, and ultimately pointless exchange of claims and counter-claims, become increasingly angry and stressed and eventually tear out your eyeballs and throw them outof your pram.

2) or you can simply act on the assumption that you are right, serve two months notice clearly referencing the break Clause, clean the property assiduously, move out, and request the return of your deposit. If /when the LL/agent either demands further rent, or makes deductions from your deposit, you refer the matter to the deposit scheme arbitration process, or refuse to pay rent and see if they take legal action which you defend.

Thank you. We’ll have an attempt at resolving it amicably, given that the landlord verbally said my son could leave and then changed their mind, so it sounds like they don’t really know what they’re doing. 

Hopefully we won’t need to resort to approach 2 but it is a very interesting option that I hadn’t thought of. The landlord might not consider it worth the time and effort to take legal action for 3 months rent. And we have a bit of experience of the DPS arbitration scheme from when my boys were at Uni! I guess my son and his girlfriend would want to check whether it affected their credit rating, as they will want to buy a house at some point. 

greatcrested

saver_ali said:

greatcrested 

1) you could go back to the LL/agent and present one or other of the interpretations I suggested. The LL /agent will refuse to accept this and repeat their earlier claim. You will enter an extended, and ultimately pointless exchange of claims and counter-claims, become increasingly angry and stressed and eventually tear out your eyeballs and throw them outof your pram.

2) or you can simply act on the assumption that you are right, serve two months notice clearly referencing the break Clause, clean the property assiduously, move out, and request the return of your deposit. If /when the LL/agent either demands further rent, or makes deductions from your deposit, you refer the matter to the deposit scheme arbitration process, or refuse to pay rent and see if they take legal action which you defend.

 I guess my son and his girlfriend would want to check whether it affected their credit rating, as they will want to buy a house at some point. 

The only way it could affect their credit rating would be if

a) it went to court - not arbitation, AND

b) they lost in court and were ordered to pay something eg rent, AND

c) they still refused to pay what the court ordered (within, I think, 21 days?)

Then, and only after all 3 steps, would the CCJ appear on their credit record.

saver_ali

greatcrested said:

The only way it could affect their credit rating would be if

a) it went to court - not arbitation, AND

b) they lost in court and were ordered to pay something eg rent, AND

c) they still refused to pay what the court ordered (within, I think, 21 days?)

Then, and only after all 3 steps, would the CCJ appear on their credit record.

Thank you. That’s reassuring. I had thought that might be the case, but wasn’t certain.

They have actually followed approach 2 in the end (from your earlier post). We looked at the tenancy agreement again and found something we’d missed, as it was in a completely different section to the break clause, which had sidetracked us. It said that at the end of the initial 12 months it reverted to a periodic tenancy, as someone had suggested in an earlier post, and they could leave at any time if they gave 2 months notice. So the landlord was wrong in what they had said. Nothing in the renewal memorandum agreement revokes that clause. (I’m very embarrassed that we didn’t find it before I posted on here!)

Anyway, we’ve basically just quoted that clause, told the landlord that the notice given last week was valid, and that they will be leaving at the end of April. We’ll tough it out if the landlord continues to be difficult.

Thanks for all your help. :-)

greatcrested

saver_ali said:

greatcrested said:

The only way it could affect their credit rating would be if

a) it went to court - not arbitation, AND

b) they lost in court and were ordered to pay something eg rent, AND

c) they still refused to pay what the court ordered (within, I think, 21 days?)

Then, and only after all 3 steps, would the CCJ appear on their credit record.

..... It said that at the end of the initial 12 months it reverted to a periodic tenancy, as someone had suggested in an earlier post, and they could leave at any time if they gave 2 months notice. .....

Just to be sure, why not quote the wording here in full?

There is potential here for a conflict in wording if the original TA states it moves to a periodic tenancy and the renewal memorandum states there is a new 12 month contract.

Whilst the renewal memorandum  states the original terms apply (ie move to periodic), it (the renewal memo) is a later document which can take precedence - and it states 12 month fixed term.

Kind of Catch 22....or do I mean Circulus in Demonstrando?

saver_ali

greatcrested said:

Just to be sure, why not quote the wording here in full?

There is potential here for a conflict in wording if the original TA states it moves to a periodic tenancy and the renewal memorandum states there is a new 12 month contract.

Whilst the renewal memorandum  states the original terms apply (ie move to periodic), it (the renewal memo) is a later document which can take precedence - and it states 12 month fixed term.

Kind of Catch 22....or do I mean Circulus in Demonstrando?

Oh dear! I’m worried again now, just when I thought we had it sorted! Here is the clause from the original agreement....

“If the Landlord allows the Tenant to remain in the Premises after the Term has expired then the Tenancy shall continue as a contractual periodic tenancy on a monthly basis. To end the periodic tenancy, the Tenant shall give the Landlord at least two month's notice in writing. The notice must end on the day before the rent is due.”

Are you suggesting that the existence of the renewal memo renders this clause inapplicable, even though it says that the terms of the original agreement still apply? If the landlord rejects our invoking of this clause would we be able to revert back to the break clause?

Still, there’s not much we can do now but wait to see if they accept the notice we have given.