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hgvseven
17-02-2010, 15:50 PM
Can any one clarify the following for me:

Assured shorthold tenancy, rent £500 per month, England & Wales.

Initially 12 month fixed term then renewed for a further 2 years fixed term from Dec 2009 - Dec 2011.

s21(1)(b) notice, fixed term, served 28th Jan 2010 with an expiry date after 1st April 2010.

Tenancy agreement has a special tenancy condition as follows:

"Notwithstanding the provisions of the agreement relating to the term of the tenancy, it is agreed between the parties that if the landlord wishes to terminate the tenancy,he may break the fixed term early by giving the tenant 2 months written notice in accordnce with s21 of The Housing Act 1988 provided that such notice does not expire before 2 months from the commencement of this fixed term."

So on the above it appears that the notice is ok as expires April however I thought (maybe wrongly) that a break clause could not operate within the first 6 months of a fixed term.

Any thoughts please?

dominic
17-02-2010, 16:16 PM
The earliest a s.21 can expire is 6 months after the start of the tenancy.

Given your tenancy was renewed, and not continued into an SPT or extended, then I would query whether the LL would have to wait until at the earliest June 2010 until the s.21 is effective (assuming it is drafted and served correctly).

Lawcruncher
17-02-2010, 18:37 PM
Technically it would seem that the landlord could break the fixed term by serving a S.21 notice. However, if served to expire before six months was up (or for that matter at any time during the fixed term), all it would serve to do would be to terminate the fixed term which would on its expiry be replaced by a statutory periodic tenancy if the tenant remains in occupation. Whatever the landlord does, he cannot get an order for possession to take effect until a date six months after the fixed term began.

hgvseven
18-02-2010, 08:24 AM
Thanks everyone.I had the same thoughts as well.

The s21 notice is valid except for not being able to terminate the tenancy within the first 6 months.

The tenant has said they will move but may need more time to find somewhere suitable as they are disabled pensioners and need another bungalow or ground floor flat.

They have no rent arrears or any other issues that would cause the landlord concern.

I thought it strange that the landlord would grant another 2 year tenancy and then seek to terminate it by serving notice a month later and this makes me wonder if the landlord is having financial problems.

However I am going to ask that no court action is taken on the basis that the tenant will be actively seeking somewhere else to live.

I feel that we could succesfully defend the claim if court action is taken but I feel negotiation is the best way forward to prevent unneccesary costs.

jeffrey
18-02-2010, 11:06 AM
All wrong, I'm afraid! The six-month rule does not apply to a replacement tenancy. Post #1 says Initially 12 month fixed term then renewed for a further 2 years fixed term from Dec 2009 - Dec 2011. See s.21(5) and s.21(6).

Lawcruncher
18-02-2010, 11:14 AM
All wrong, I'm afraid! The six-month rule does not apply to a replacement tenancy. Post #1 says Initially 12 month fixed term then renewed for a further 2 years fixed term from Dec 2009 - Dec 2011. See s.21(5) and s.21(6).

Oops! Lapse of concentration on my part. Read my previous post ignoring the last sentence.

hgvseven
18-02-2010, 11:20 AM
Thank you Jeffrey & Lawcruncher, you saved me hours of research!

I wasn't quite sure hence why the post but at least you pointed out the revelant section of the act. Will keep this for future reference:

[F4 (5) Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than—
(a)in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and
b)in the case of a replacement tenancy, six months after the beginning of the original tenancy[/B]