Help - Problem with letting agent.

[peter_sanders]

Hi,

My letting agent is not giving me right information. I rented my house couple of months ago on full management and told him that I wanted to rent my house for 6 months only. He sent me a form which is a contract between agent & myself and it was for 1 year. I didn’t sign on that & asked him to send me the contract between agent & tenant first. After 2 months I got it & found out he has made contract for 1 year. I rang him then he told me you don’t need to worry as it is 1 year contract but you can get your house back after 6 months by giving 2 months of notice. But I am not sure if it is true. I looked at couple of website & it seems I can’t get my house back within 1 year.

Please help me what I should do.

Thanks
Peter

[mjpl]

Check the tenancy agreement for a clause know as a Break Clause. If there is one the agent may partially be telling the truth.

However, if the tenant refuses to leave it will be longer than that before your property is vacant, just as it would be on a straight six month tenancy.

[Paul_f]

Just to add my two penn'orth
Check the tenancy agreement for a clause know as a Break Clause. If there is one the agent may partially be telling the truth.
I'll tell you now for nothing this break clause is invalid! The agent is also in breach of the terms of business as agreed with the client. You should write to the agent telling him that if the tenant has a right to stay in the property for 12 months (which it appears he indeed has!), then you will be taking action against him for damages! Should sharpen his mind a bit!

However, if the tenant refuses to leave it will be longer than that before your property is vacant, just as it would be on a straight six month tenancySorry! Don't quite follow your meaning here!.

[MrShed]

Your agent is talking out of his arse. Not only is he in breach of terms of business, as paul rightly says, he does not know his law from his elbow. I believe his assumption is that either he has a break clause, which would be invalid again as paul says, or that he can serve a Section 21 to expire after 6 months which is just rubbish.

End of the matter is that as long as the tenant pays his rent on time and does not breach the tenancy agreement, he is fully entitled to stay there the full year. Get rid of this agent, what a moron!

[mjpl]

I am a little confused. The original thread states that a contract has been drawn up for one year. My query was whether the contract contained a break clause.

If the contract stated that either the tenant or Landlord could serve two months notice to terminate the contract after four months then it would be a perfectly valid break clause (subject to wording).

Why are we stating that it would be invalid even before the original poster has confirmed the existence of such a clause?

[MrShed]

If there is a clause in stating that the landlord can give 2 months notice, surely this cannot be exercised until after the fixed term, of one year?

[mjpl]

But that is what a break clause is! A clause that allows a fixed term to be broken. The only stipulation being that the amount of notice must be adequate and it cannot expire within the initial six months.

The proper use of break clauses is taught in all the ARLA advanced legal courses so I am surprised at Paul's comments.

[SteveP]

I believe his assumption is that either he has a break clause, which would be invalid again as paul says, or that he can serve a Section 21 to expire after 6 months which is just rubbish.

Perhaps herein lies the confusion. I think the implication may be that there is a break clause, which may be lawful, allowing the landlord to give two months notice at the end of the statutory minimum six month term, hence the tenant is guaranteed eights months occupation.

I don't think the suggestion is that he can give 2 months notice prior to the statutory minimum being up.

In any event it really is a mute point. The Agent has breached his contract with the Landlord and it wouild be unwise to aquisce in that breach. Pauls advice as to what to do seems spot on to me.

[MrShed]

My apologies mjpl, I have spoken out of my proverbial arse. I am not used to thinking about AST fixed terms longer than 6 months :p of course I forgot that the minimum statutory period is less than the fixed term in this case!

[Paul_f]

The reason why any break clause would be invalid is the landlord cannot give with one hand a 12 months AST and then take it back halfway through so to speak, with the other; it's an onerous term.

Only if the landlord and tenant have agreed to such a break clause prior to the tenancy being drawn up, and there has been some form of correspondence to prove this, would such a clause be valid. It would then have to be included in the section under "Special Tenancy Conditions" which would then remove it from the Housing Act 1988 obligations. I still think a tenant could challenge this anyway if he wanted to as it would take away his statutory right to complete the fixed term.

Clearly from the information given in this case the agent has cocked-up but that doesn't mean the landlord can just repossess after 6/8 months because it might contain a break clause. I'm absolutely sure any action would fail in court unless the above procedure has been followed to the letter.

[bdcmassif]

Hello chaps,

Just to add a another opinion.....

The real crux of the matter seems to me to be the lease agreement. If the initial fixed term was for a year then this is the length of time that the tenancy will reun for except in the case of breach or mutually accepted surrender.

I assume this fits all the criteria for an AST, and therefore the minimum time of possession granted to a tenant is 6 months. If this lease agreement does have a landlord break or release clause (and unless an option to renew is present this is perfectly legal) to break the fixed term at the 6 month point, then provided sufficient notice is given, and notice is served, possession should be guaranteed at the end of 6 months. It is important to note that exercising a break clause should go hand in hand with serving the section 21 4(b), with the section 21 expiring on or after the last day of the tenancy.

--------------------------------------------------------------------

The contents of the above message are Without Prejudice

[S J]

A break clause only operates for tenants and not both ways. The landlords equivalent is a forfeiture clause.

A tenancy granted (by an agent in excess of agreement) in this way may not necessarily be capable of being binding on the landlord.

[bayoo]

According to the Assured shorthold tenancy it is the LandLords right and tenants right to give 2 months notice period to terminate the contract for a reasonable reason.
It does not matter if your contract is for 6 months or 1 year.

[S J]

??? :eek:

[MrShed]

According to the Assured shorthold tenancy it is the LandLords right and tenants right to give 2 months notice period to terminate the contract for a reasonable reason.
It does not matter if your contract is for 6 months or 1 year.

Absolute rubbish. Which banana boat have you come in on??

[Tax Accountant]

I have not seen this tested in court, but I would have thought that a lease can validly contains a break clause to be exercised by either party by giving no less than 2 months notice after the initial 4 months. As MJPL states, a break clause is exactly just that, ie to break the full term of the lease, as is quite common in commwercial leases.

Why should a break clause in a tenancy agreement require any higher burden of proof than any other clause in the tenancy agreement? So long as both parties have validly signed the agreement, they are both bound by it.

Not that this carries any weight, but my last tenants were two professionals working in the city and they required a break clause. I then insisted that this should be available to both parties. As it happens, I needed the flat back after 6 months so I served a notice after 4 months and the tenants vacated at the end of the 6 months.

Ramnik

[MrShed]

Why should a break clause in a tenancy agreement require any higher burden of proof than any other clause in the tenancy agreement? So long as both parties have validly signed the agreement, they are both bound by it.


Sorry Karongo, but this is not neccessarily the case. Terms that are onorous, and hence declared unfair terms by the OFT, are null and void, regardless of whether both parties have agreed or not. UNLESS they are negotiated seperately from the tenancy agreement.

[mjpl]

Mr Shed, why not read the terms dictated by the OFT and find out what their thoughts are about break clauses. I think you will find that they are happy on the proviso that they offer equal terms to both parties.

[MrShed]

I was speaking generally mjpl, regarding Karongos statement "So long as both parties have validly signed the agreement, they are both bound by it.".

[slick]

So, if both parties agree to a two month break clause, and there is written evidence of this, and it is put in the special tenancy conditions, there is no miniumum time that the tenant has to stay?

How is it done if the landlord wants a break clause?