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    • fairy2
    • By fairy2 14th Mar 19, 9:05 PM
    • 143Posts
    • 13Thanks
    fairy2
    Help please - s21 notices and break clauses
    • #1
    • 14th Mar 19, 9:05 PM
    Help please - s21 notices and break clauses 14th Mar 19 at 9:05 PM
    I have been told something by a letting agent about an assured shorthold tenancy (AST) which I am not sure is right. I would be very grateful if someone would correct these errors. I have been told that with an AST a section 8 notice is only used for eviction for rent arrears and section 21 is used in every other circumstance e.g. seeking eviction for antisocial behaviour, significant breach of obligations under the AST etc.

    I have also been told that I MUST HAVE A BREAK CLAUSE in the AST in order to entertain a section 21 notice. So I would have to allow the tenant to have the right to a break clause at say six months (ie they can leave just because they fancy leaving) in order to give me any right to evict the tenant for breach of the AST. This is the first time Iíve ever heard this and it doesnít sound right. If I need the break clause then it would follow that if, for example, the tenant significantly breached the AST say at 3 months but I had to have a break clause, as it would not have kicked in in the above example until 6 months it would still be of no use until 6 months?

    I had thought that an adequate AST always gave the landlord the right to terminate the AST for significant breach of lease? Obviously nothing is certain if you have to go to the courts. Maybe I have misunderstood how this works but until now I have never heard of a link between terminating an AST for significant breach of lease and break clauses. Really hope that someone can shed some light on this. Thanks very much.
Page 1
    • fairy2
    • By fairy2 14th Mar 19, 9:31 PM
    • 143 Posts
    • 13 Thanks
    fairy2
    • #2
    • 14th Mar 19, 9:31 PM
    • #2
    • 14th Mar 19, 9:31 PM
    That is a great sticky - thanks. Never had to do this but it looks like a breach of AST would be one of the 17 specific circumstancess and would be a ground to serve a Section 8 (schedule 2) Notice.

    I think what the agent may be alluding to is that under a section 8 the tenant can contest it and it can be costly. If you go the section 21 roiute it is almost an automatic right to terminate and evict so is more straightforward but the right under a section 21 has nothing to do with a breach of contract etc you have whatever right you have under a break clause in any event. I found this which seems to suggest that:https://www.theonlinelettingagents.co.uk/news/the-difference-between-a-section-8-and-a-section-21/
    • G_M
    • By G_M 14th Mar 19, 9:54 PM
    • 47,404 Posts
    • 57,859 Thanks
    G_M
    • #3
    • 14th Mar 19, 9:54 PM
    • #3
    • 14th Mar 19, 9:54 PM
    I assume you are referring to my sticky? It answers your questions.......


    * 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?
    • fairy2
    • By fairy2 14th Mar 19, 11:57 PM
    • 143 Posts
    • 13 Thanks
    fairy2
    • #4
    • 14th Mar 19, 11:57 PM
    • #4
    • 14th Mar 19, 11:57 PM
    I assume you are referring to my sticky? It answers your questions.......


    * 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?
    Originally posted by G_M
    Hi yes I was - I was replying to a post by Slithery on this thread that appears to have disappeared. Thanks for the sticky - it is really helpful.
    • deannatrois
    • By deannatrois 15th Mar 19, 2:32 AM
    • 5,910 Posts
    • 8,291 Thanks
    deannatrois
    • #5
    • 15th Mar 19, 2:32 AM
    • #5
    • 15th Mar 19, 2:32 AM
    I think you need to get the LA to email the information they seem to have given to clarify, but if there hasn't been a misunderstanding, avoid them. They are wrong about the need for a break clause for a S21 eviction to be valid as far as I am aware.

    A break clause can be in a tenancy agreement, but doesn't have to be.

    S21 as you have later said, is a no fault way to evict. But it has to be totally correct, and the deposit has to be protected, the tenant given various paperwork. It can only be used from two months before the end of the fixed term, or after the fixed term has completed.

    Evicting under S8 allows you to evict on various grounds (usually used for rent arrears) and before the end of the fixed term, but there is no certainty it will be granted by a judge.

    Even with a S21, if the tenant says repairs haven't been carried out, it can be thrown out or delay eviction. The tenant can also ask for an up to 42 day extension if they have reasons for doing this, which may or may not be granted.
    • Comms69
    • By Comms69 15th Mar 19, 6:39 AM
    • 7,687 Posts
    • 8,321 Thanks
    Comms69
    • #6
    • 15th Mar 19, 6:39 AM
    • #6
    • 15th Mar 19, 6:39 AM
    I have been told something by a letting agent about an assured shorthold tenancy (AST) which I am not sure is right. I would be very grateful if someone would correct these errors. I have been told that with an AST a section 8 notice is only used for eviction for rent arrears and section 21 is used in every other circumstance e.g. seeking eviction for antisocial behaviour, significant breach of obligations under the AST etc. The agent is clearly incorrect

    I have also been told that I MUST HAVE A BREAK CLAUSE in the AST in order to entertain a section 21 notice. So I would have to allow the tenant to have the right to a break clause at say six months (ie they can leave just because they fancy leaving) in order to give me any right to evict the tenant for breach of the AST. that is incorrect- though can be sensible This is the first time Iíve ever heard this and it doesnít sound right. If I need the break clause then it would follow that if, for example, the tenant significantly breached the AST say at 3 months but I had to have a break clause, as it would not have kicked in in the above example until 6 months it would still be of no use until 6 months? you donít have the right to evict for breach of tenancy; just the right to ask the court to consider evicting

    I had thought that an adequate AST always gave the landlord the right to terminate the AST for significant breach of lease? Obviously nothing is certain if you have to go to the courts. Maybe I have misunderstood how this works but until now I have never heard of a link between terminating an AST for significant breach of lease and break clauses. Really hope that someone can shed some light on this. Thanks very much.
    Originally posted by fairy2
    You do not, ever ( YES, EVER ) have the right to terminate a tenancy. But you do, by statute, have options for court - whether you have a well written AST, or a verbal agreement.
    • fairy2
    • By fairy2 15th Mar 19, 6:43 AM
    • 143 Posts
    • 13 Thanks
    fairy2
    • #7
    • 15th Mar 19, 6:43 AM
    • #7
    • 15th Mar 19, 6:43 AM
    You do not, ever ( YES, EVER ) have the right to terminate a tenancy. But you do, by statute, have options for court - whether you have a well written AST, or a verbal agreement.
    Originally posted by Comms69
    Thanks. I understand the legal point it is rather the relationship between the ability to go to court and having a break clause which I could not follow - I now know there actually isn't any correlation between a section 8 notice and a break clause and the information I was given was incorrect. Thanks.
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