AST term help for early termination of tenancy clause

haveabreak

Hi all

Can I please ask about the following "Special Tenancy Conditions" clause for termination of tenancy added on a draft AST provided by my agent (I am the landlord).

The first paragraph is not so special as I understand by law Tenant is only required 1 month notice and Landlord 2 months notice to quit, and the notices must not expire before the 12m fixed term end date (in this case, 8th May 2024).

The second and third paragraph seem to slightly contradict to me. 
The second seems to states the tenant has to pay rent up until 8th May 2024 if they serve notice expiring earlier to this date. The third seems to state (in the same scenario) the tenant has to pay for any re-letting fees if tenancy terminates early.

In that case if tenancy ends early and the property is re-let, then why would original tenant still be liable for rent up to the term end date? Does this all mean to say the original tenant is liable for rent shortfall (if any) up to the term end date, as well as re-letting fees?

Any help is very much appreciated.

Thanks.

AST term:

10.            SPECIAL TENANCY CONDITIONS

The following clauses detail the further terms which have been individually negotiated and agreed between the Landlord and the Tenant.

Ending Tenancy:

Should either party wish to terminate the Tenancy, it is agreed that the Tenant must serve a minimum of 1 month’s advance written notice to be served on the Landlord. The Landlord must serve a minimum of 2 months advance written notice to be served on the Tenant. The tenancy must not expire within the first 12 Months of the Tenancy commencement date.

In the event that the Tenant fails to provide such notice, or the Tenant serves notice to expire earlier than the end of the Term, the Tenant shall be responsible for the Rent until such time as their notice could have expired in accordance with this clause.

Further, in the event that the Tenant serves notice to expire earlier than 8th of May 2024, the Landlord shall treat their notice as the Tenant requesting a termination of the Tenancy and accordingly be entitled to recover their losses caused by the Tenant serving notice, including any re-letting fees.

theartfullodger

Your agent appears not to understand the law regarding landlords and tenants.

The law says tenant must serve AT LEAST on month's notice expiring on last or first day of tenancy period.  An no notice required if leaving before end of fixed term (no, none at all).

Plus for a new tenant I'd go with 6 months fixed term (more incentive for tenant to comply with agreement, more flexibility for landlord to evict) then periodic.  Agent probably wants 12 months so they can grab 12 months commission.

Not surprising as to be a lettings agent in England ( is it ? ) requires no qualifications, no training nor any criminal records check.  Their office may be completely staffed by ex-cons from Brixton after their time doing porridge for fraud and GBH.  Entirely legal. Bonkers, other countries handle this better.

I'd find a better agent.

Artful: Landlord since 2000

haveabreak

theartfullodger said:

What is your view in regard to the question on the OP?

This is a Goodlord tenancy agreement by the way. The agents are ok.

doodling

Hi,

The tenant is liable for rent until they end the tenancy by giving valid notice, termination is mutualy agreed by the tenant and landlord or a court ends the tenancy.

The tenant can't end the tenancy before the end of the fixed term so they are liable for rent until that point.

If the tenant asks to end the tenancy earlier then the landlord might accept less than all the rent but the tenant must ensure that the landlord is in the same position as if the tenant had paid all the rent (i.e. the tenant pays all the costs associated with finding a new tenant and any difference in the rent if the new tenant is paying less).  The paragraph also suggests that a request to end the tenancy earlier will start that process of finding a new tenant and hence incur costs so I would be very careful how you phrase any requests if that is what you are going to do.

To be honest, it is usually unwise to enter into a tenancy if you think you might need to leave before the end of the fixed term.

propertyrental

So tis is a 12 month fixed term tenancy due to start 9/5/23 and ending 8/5/24 yes?

haveabreak said:

Hi all

10.            SPECIAL TENANCY CONDITIONS

The following clauses detail the further terms which have been individually negotiated and agreed between the Landlord and the Tenant.

Ending Tenancy:

Should either party wish to terminate the Tenancy, it is agreed that the Tenant must serve a minimum of 1 month’s advance written notice to be served on the Landlord. The Landlord must serve a minimum of 2 months advance written notice to be served on the Tenant.

This is not, as you suggest, 'law', If the T wishes to end the tenancy on 8/5/23, no notice is required by law. That's what 'fixed term' means. However, contractually the T should serve the specified notice, though in reality if they don't there is little the LL can do.

The 1 month/2 month notice requirement applies after the fixed term if the tenancy goes periodic (rolling).

The tenancy must not expire within the first 12 Months of the Tenancy commencement date. so no Break Clause.

In the event that the Tenant fails to provide such notice, or the Tenant serves notice to expire earlier than the end of the Term, the Tenant shall be responsible for the Rent until such time as their notice could have expired in accordance with this clause. 

Totally unneccessary clause since it goes without saying that if a T gives inadequate notice, they remain liable until such time as the notice would have been valid.

Further, in the event that the Tenant serves notice to expire earlier than 8th of May 2024, the Landlord shall treat their notice as the Tenant requesting a termination of the Tenancy and accordingly be entitled to recover their losses caused by the Tenant serving notice, including any re-letting fees.

The final clause seems to contradict the earlier one ("The tenancy must not expire within the first 12 Months "). Either the T can, or can't, end the tenancy earlier than 8/5/23. Which is it? Though the clause uses the term 'request a termination' which makes more sense than 'serves notice'. 

Yes, of course the T can 'request' termination at any time. The LL can then agree or not. If the LL does agree, then the terms of that agreement do not need specifying in the contract - the L can specify his terms at the time of (and as a condition of, his agreement.

haveabreak

propertyrental said:

So tis is a 12 month fixed term tenancy due to start 9/5/23 and ending 8/5/24 yes?

Yes. Here is further extract from the AST regarding "Term" and "Tenancy".

The Term: The Tenancy shall be for a period of 12 Months to start on and include the 9th May 2023 and to end on and include 8th May 2024, and thereafter from Rental Period to Rental Period. The Term and the periodic tenancy that arises after it shall be referred to as “the Tenancy”. ("the Term")

Definitions:
The Term: The length of the letting agreed in this Agreement including any extension or continuation or any statutory periodic tenancy arising after expiry of the original Term.

The Tenancy: The Term, plus any extension or continuation or any statutory periodic tenancy arising after expiry of the original Term.