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chocolatemalteser
26-03-2008, 21:56 PM
Hi
I know this question must get asked 100's of times, so sorry for being repetitive.
On an AST where fixed term is due to end in Aug 08, LL cannot end the tenancy prior to this even if a landlord break clause is inserted into the tenancy agreement (two months after six) right?? The fixed term is until Aug 08, surely? If the landlord gives notice now ordering tenants to be out within two months, what is the tenants legal position - are they right to insist they can stay til end of fixed term Aug 08 (assuming LL uses S21 to end it in Aug 08)?

P.Pilcher
26-03-2008, 22:59 PM
Provided the tenant has complied with all the requirements of the tenancy agreement (i.e. paid his rent promptly and not damaged the property) a landlord cannot commence eviction procedings until the end of the fixed term of the AST. The landlord must also must give the tenant at least two months notice that he intends to do this.

P.P.

Bel
27-03-2008, 06:53 AM
See thread:

http://www.landlordzone.co.uk/forums/showthread.php?t=9941

chocolatemalteser
27-03-2008, 12:37 PM
Provided the tenant has complied with all the requirements of the tenancy agreement (i.e. paid his rent promptly and not damaged the property) a landlord cannot commence eviction procedings until the end of the fixed term of the AST. The landlord must also must give the tenant at least two months notice that he intends to do this.

P.P

That's what i thought - and the fixed term is not at the end of the landlord's break clause is it, it's at the end of the first year?

ps i read that thread but got throughly confused because at one point someone seems to be saying that the break clause cancels out the fixed term - i don't understand the below at all:


The clause is irrelevant if a s.21 Notice is used. No matter when served, it cannot take effect until the fixed term expires.
On the other hand, the clause can allow L to terminate (once the first six months have elapsed) even during the fixed term.jeffrey

jeffrey
27-03-2008, 13:24 PM
Break clause can operate during fixed term. Section 21 Notice can't. OK?

lorenzo
27-03-2008, 13:58 PM
Break clause can operate during fixed term. Section 21 Notice can't. OK?
jeffrey,

I am now totally befuddled on this.

* If LL can't use s21 during fixed term (which makes total sense), how does he enforce break clause?

* By way of a minor rant, I just don't get this break clause business anyway. Why not just have a 6 month contract? It seems to add confusion all round.

jeffrey
27-03-2008, 14:31 PM
jeffrey,

I am now totally befuddled on this.

* If LL can't use s21 during fixed term (which makes total sense), how does he enforce break clause?

* By way of a minor rant, I just don't get this break clause business anyway. Why not just have a 6 month contract? It seems to add confusion all round.
Your befuddlement might arise from definition of "use".

A section 21 Notice:
a. can be served during fixed term; BUT
b. cannot give right to possession until fixed term ends. I treat this latter as "using" s.21!

Break clause is entirely different and applies only if AST says so.

Section 21 applies to every AST, even without express provision in AST, unless L failed to:
a. protect a deposit that should be protected; or
b. register a HMO that should be registered.

lorenzo
27-03-2008, 14:38 PM
Your befuddlement might arise from definition of "use".

A section 21 Notice:
a. can be served during fixed term; BUT
b. cannot give right to possession until fixed term ends. I treat this latter as "using" s.21!

Break clause is entirely different and applies only if AST says so.

Section 21 applies to every AST, even without express provision in AST, unless L failed to:
a. protect a deposit that should be protected; or
b. register a HMO that should be registered.
Yes "use" was the wrong word.

What I'm trying to get at is this:

1/ 12 month AST is in place.
2/ AST has 6 month break clause.
3/ LL wants T out after 6 months, but s21 cannot expire until after end of fixed term (12 months).

How does LL get T out?

jeffrey
27-03-2008, 15:36 PM
L simply serves a contractual break clause Notice compliant with AST's requirements as to service and operational dates.
L does not then need to serve under s.21.

lorenzo
27-03-2008, 20:25 PM
...and if T does not budge, LL can presumably obtain a court order on that basis?

P.Pilcher
27-03-2008, 22:34 PM
I regret to say that this still is not clear, let's recap: Tenant is granted a 12 month AST containing a break clause which enables the landlord to gain vacant possession at any time after the first six months of the tenancy agreement provided he gives the tenant at least two months notice of when he will require vacant possession. The notice is served correctly and after the notice period has expired, the tenant fails to vacate the property. Which section of the act is the court asked to use to return vacant possession to the landlord by issuing the possession order which a CC bailiff can enforce if necessary? Will a court hearing be necessary or can the "accelerated" procedure be used?

(As Paul F. is always stating: "I hate break clauses." I see what he means!)

P.P.

chocolatemalteser
28-03-2008, 06:58 AM
...and if T does not budge, LL can presumably obtain a court order on that basis?

yes, what happens if the tenant insists on staying (and paying)? Must the LL serve S21 as well?


L simply serves a contractual break clause Notice compliant with AST's requirements as to service and operational dates.
L does not then need to serve under s.21.

if T is determined to stay then what procedure must landlord follow?
If LLs are going to rent out their properties and grant a year's tenancy then a year should mean a year!! They ought not to be able to renege on this by exercising crappy break clauses after six months. It's expensive and unsettling for tenants. LLs can't have their cakes and eat it too! Rant rant rant...