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Francined
06-10-2011, 10:45 AM
The AST is for 12 months ending 30th March 2012, but with a 6 month break clause which ended 30th September 2012, with a one month notice period from the tenant thereafter. The tenant has given one months written notice to leave the property on 31st October, but we want to issue a S.21 notice in case she does not leave, so want to give 2 months notice, which is in accordance with the contract. However, when I completed the template for a fixed term agreement, it gives the notice expiry date of 30th March 2012 - which would be correct if there was no break clause, but as there is a break clause, and the tenant has already given notice, how do we deal with this? Is it legally acceptable to put the notice expiry date as 2 months from today (or the date the notice will be received). Thank you

Snorkerz
06-10-2011, 10:51 AM
Can you quote the exact wording of the break clause.
What have you done to execise the break?

Francined
06-10-2011, 10:58 AM
You wanted the exact wording:

"Should this contract be for a period longer than 6 months the tenants may terminate the contract by giving one months written notice from any rent due date, but not prior to the rent due for the fifth month

The Landlord may bring the tenancy to an end any time before the expiry of the fixed term (but not within six months of the commencement date) by giving the tenant at least two months written notie stating that the landlord requires possession of the property. A notice under section 21 of the Housing Act 1988 will suffice to implement this sub clause. "

In this case, the six months ended 30th September, and the tenant gave one month notice to leave 31 October, but landlord wants to give 2 months notice from today, in case tenant does not leave. However, the AST ends 30 March 2012 - but the 6 months break period has passed.

jjlandlord
06-10-2011, 11:03 AM
If the notice served by your tenant is valid, it will end the tenancy on expiry.
Hence, if he does not vacate, you will be able to apply for a court order immediately without issuing any further notice.

Snorkerz
06-10-2011, 11:15 AM
If the notice served by your tenant is valid, it will end the tenancy on expiry.
Hence, if he does not vacate, you will be able to apply for a court order immediately without issuing any further notice.Totally true, but as that would require a court hearing and an accelrated s21 probably wont, there may be not much difference in the timescale and there is much more information/help available for s21's.

As the fixed term is still running, you need to serve a section 21(1)(b) notice with an expiry date of at least 2 months later han the SERVICE date. If you serve by hand after 4:30 it is classed as served the next day. You do not include the date of service in the 2 months. The expiry date should be expressed as "after xx/xx/2011". You will need proof of service.

Is there a deposit? Is it protected?

There is an s21(1)(b) template here: http://www.letlink.co.uk/GeneralInfo/General_possession/S21_1_B.pdf

westminster
06-10-2011, 15:13 PM
Is it legally acceptable to put the notice expiry date as 2 months from today (or the date the notice will be received).

It must give at least two months from date of service (not date of receipt) to expiry date.

Rules of deemed service:
If delivered by hand before 4.30pm on a business day (i.e. Mon-Fri exc. bank holidays) then the notice is deemed served the same day.
If delivered by hand after 4.30pm the notice is deemed served on the next business day.
If posted first class, the notice is deemed served two business days later.

For example, if you posted the notice tomorrow, 7th October, it'd be deemed served on 11th October. The date of service is excluded from the notice period, so the earliest the notice could expire would be "after 11th December 2011" - this gives two clear months, 12th October - 11th December inclusive.