Break clause and rent arrears

Dazpm01867

Hi in a pickle getting my head around hiw I need to go about this is anyone can help 

Im in an ast agreement that commenced 5 September 2023

i can give 2 months break clause after initial 4 months

So my plan is to issue break clause so that 2 months is up in accordance to start date however I didn’t pay rent due 
1st august and now also 1st September and won’t be able to pay towards either for a couple of weeks 
I am paying 1 month up from though 

so I’d like to move out by 5th November for financial reasons and will need to clear outstanding months but worries if I can break clause due to the rent in arrears 

contact wording below 

I guess if I can issue the break I will need to add a payment plan in aswell, not sure what or how the may request the plan 

thanks I no advance 

Mutual option to break

10.1 Either the Landlord or the Tenant may terminate this agreement by serving a Break Notice on the other party at any

time following expiry of the fourth month of the Term.

10.2 A Break Notice served by the Tenant shall be of no effect if at the Break Date stated in the Break Notice:

(a) the Tenant has not paid by way of cleared funds any part of the Rent which was due to have been paid; or

(b) the Tenant has not vacated the Property and returned the Property to the Landlord free from any occupier or third

party right to occupation or possession; or

(c) there is a subsisting material breach of any of the tenant covenants of this agreement relating to the state of repair and condition of the Property.

10.3 Subject to clause 10.2 following service of a Break Notice this agreement shall terminate on the relevant Break Date.

10.4 Termination of this agreement on a Break Date shall not affect any other right or remedy that either party may have in

relation to any earlier breach of this agreement.

10.5 If this agreement terminates in accordance with Clause 10.3, then, within 10 working days of the relevant Break Date, the Landlord must refund to the Tenant the proportion (calculated on a daily basis) of any Rent paid in advance by the Tenant for the period from but excluding the relevant Break Date up to but excluding the next Rent Payment Date

 

silvercar

Is this a fixed term tenancy? If so, you could leave at the end of the fixed term without any notice. Once you pass that point you need to give notice. The tenancy agreement can’t give you notice terms greater than the law. Once the contract is beyond the fixed term, you can give one months notice to end at the end of a rental period. 

Break clauses only apply in the fixed term. If you are in the fixed term you need to sort out rent arrears before you can give notice.

RAS

You've given the start date of the tenancy agreement, but not the date the fixed term ends. Possibly 4 September 2024 when you could leave without giving any notice at all? It's polite to let the LL know in advance but legally not necessary.

Beyond that, the tenancy becomes periodic. What does your contract say about notice during the periodic tenancy? Break clauses are irrelevant during periodic tenancies.

If it is silent, then you will have a statutory periodic tenancy and have to give one month's notice but people need to know more about your tenancy dates. On what date do you pay rent?

This is assuming that you can't contact your LL and they agree a mutual surrender because of your inability to pay rent. If you intend repaying your debt they might be amenable.

saajan_12

Dpmorgan25 said:

Hi in a pickle getting my head around hiw I need to go about this is anyone can help 

Im in an ast agreement that commenced 5 September 2023

i can give 2 months break clause after initial 4 months

How long was your tenancy and what date (exactly) does it end? IF it started 5th Sept23 and IF it was a 12 month agreement ending 4th Sept, then
- it may be worth rushing to get out by 4 Sept without notice. That ends the AST, so at least stops the ongoing liability. There may be a contractual requirement to give notice but let the LL prove that. 
- if  you don't, then you need to check the section about notice AFTER the fixed term. This may or may not be 2 months. If it says nothing, then then you may go onto a SPT with 1 tenancy period notice, so giving notice asap may be crucial. 

Dpmorgan25 said:

10.2 A Break Notice served by the Tenant shall be of no effect if at the Break Date stated in the Break Notice:

(a) the Tenant has not paid by way of cleared funds any part of the Rent which was due to have been paid; or

(b) the Tenant has not vacated the Property and returned the Property to the Landlord free from any occupier or third

party right to occupation or possession; or

...

Strange clause.. while I understand it may incentivise tenants who just want to move, at the same time if a tenant can't afford it then whats the point in forcing non-paying tenants to stay? Better to cut the bleed short and get on a smaller payment plan. 

So even if the above clause applies to you, I'd try to negotiate with the LL to mutually surrender the tenancy on any asap date. You'd be saying that you can't afford the rent and it'll take ages to pay back an extra 2 months of rent on top of the current arrears.. better for the LL to let you out and get a new paying tenant in sooner. 

Dazpm01867

Hi all thanks so much for the comments I’ll add the info for you to see now 

it was a 2 year contract 

TENANCY AGREEMENT FOR AN ASSURED SHORTHOLD TENANCY WITH FLATFAIR NO-DEPOSIT ALTERNATIVE 2022

IMPORTANT:

This is a legally binding document. Please read it carefully to ensure that it contains everything you want and noth

Dazpm01867

A fixed term of 24 months from and including 5 September 2023 - 4 September 2025

rent at an initial rate of £… per month and then as may be revised in accordance with this agreement.

The first day of each month

saajan_12

Dpmorgan25 said:

A fixed term of 24 months from and including 5 September 2023 - 4 September 2025

rent at an initial rate of £… per month and then as may be revised in accordance with this agreement.

The first day of each month

Ok so that changes things.. as you're part way through the fixed term, then the only ways to get out soon are by following the break clause or by negotiating something else with the LL. 

Strongly suggest the latter, saying that you're struggling with affordability and if you are allowed to leave sooner with less notice plus a payment plan for the arrears then the LL will get their money and a paying tenant sooner. 

propertyrental

You can end the tenancy earlier than 4/9/25 by activating the Break Clause (and complying with its terms). So pay off the arrears and then serve BC notice.

Or have a discussion with the LL. No LL will want to keep a tenant who regularly fails to pay rent, so a mutual agreement can probably  be reached.