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janestonehouse
10-04-2012, 12:40 PM
Hi Guys,

I need to issue notice to a set of tenants.:s:

The contract has the following wording:

Term: For the term of one year
Commencing on 19th September 2011 End Date: 18th September 2012

Rent: £1278.33 Monthly

Payment: in advance by equal payments Monthly on the 1st of each month.


So....should my section 21 expire after 18th June 2012, OR after 30th June 2012 (as the contract says the rent is due on the 1st of each month).

ALSO! - It says in the special tenancy conditions that notice must be given in line with the rent due date. Which makes me think even more that the section 21 should expire after 30th June. Does this clause 'over-ride' the actual contract start and end date.

THERE IS ALSO A SIX MONTH BREAK CLAUSE!
Either party may bring the tenancy to an end at any time before the expiry of the term (but not earlier than six months from the commencement date of the current agreement) by giving to the other not less than two months written notice. Two months written notice must be given at any time throughout the tenancy in order to terminate the contract, even if the initial tenancy period has expired. This notice must also be in line with the rent due date (i.e a tenant wishing to vacate a property on 01st July must give notice no later than 01 May)

Would really appreciate your help with this.


Thanks
Jane

thesaint
10-04-2012, 12:43 PM
Surely it's after the 18th Sep 2012?

janestonehouse
10-04-2012, 12:50 PM
Sorry Guys! There is a six month break clause.

Should have said before....

Thanks
Jane

westminster
10-04-2012, 12:59 PM
Please quote the exact wording of the break clause.

janestonehouse
10-04-2012, 13:35 PM
The exact wording is as follows:

Either party may bring the tenancy to an end at any time before the expiry of the term (but not earlier than six months from the commencement date of the current agreement) by giving to the other not less than two months written notice. Two months written notice must be given at any time throughout the tenancy in order to terminate the contract, even if the initial tenancy period has expired. This notice must also be in line with the rent due date (i.e a tenant wishing to vacate a property on 01st July must give notice no later than 01 May)

Thanks
Jane

westminster
10-04-2012, 17:36 PM
Two months written notice must be given at any time throughout the tenancy in order to terminate the contract, even if the initial tenancy period has expired.
This bit is incorrect. When a fixed term AST is replaced by a statutory periodic tenancy, provisions for notice do not carry through into the SPT (see s.5 HA1988) - in other words, the T does not have to give two months notice.

Like many break clauses, it's poorly drafted.

It says either party may end the tenancy 'at any time' before fixed term expiry. But unless it means the party may serve the notice 'at any time', they can't actually end the tenancy 'at any time', as it then goes on to say the notice must be 'in line with the rent due date' and expire on a specific date - one presumes, by the example given, that this means the notice must expire on the 1st of a month. Which doesn't make much sense, when rent is due on the 1st of the month.

You need to understand that a notice under a break clause is a completely separate thing to a s.21 notice. If you exercise the break clause, it will have the effect of ending the fixed term tenancy at notice expiry (and if the T is in occupation at notice expiry, a periodic tenancy will then arise the next day, replacing the fixed term tenancy).

A notice under a break clause therefore enables the LL to serve a s.21 notice expiring 'early', after the newly curtailed fixed term.

While a notice under a break clause and a s.21 notice are two separate things, it's possible for a s.21 notice to simultaneously fulfill the function of a break clause notice. However, IMO it's better to send two separate notices to avoid any doubt as to whether the break clause has been exercised.

So in this case, if you were to serve a notice under the break clause this week, you'd say that you are giving notice under Clause X to end the fixed term tenancy, expiring "after 1st July 2012".

Then, on Monday, you could serve a s.21(1)(b) notice expiring "after 1st July 2012".

Note that if T does not vacate on 1st July, the tenancy periods of the SPT would run 2nd - 1st of the month.

Snorkerz
10-04-2012, 17:43 PM
So in this case, if you were to serve a notice under the break clause this week, you'd say that you are giving notice under Clause X to end the fixed term tenancy, expiring "after 1st July 2012".
Westminster, as the break clause brings the fixed term to an end on a specific date, should this notice expire on 1st July 2012?

westminster
10-04-2012, 18:39 PM
Westminster, as the break clause brings the fixed term to an end on a specific date, should this notice expire on 1st July 2012?

Your guess is as good as mine. But exactly when 'on' 1st July would the notice expire? The clause says:


This notice must also be in line with the rent due date (i.e a tenant wishing to vacate a property on 01st July must give notice no later than 01 May)


Yet the tenant wishing to vacate 'on 1st July' would have until midnight.

The wording 'after 1st July' surely just means that the notice expires at the precise moment that the day of 1st July ends.

jjlandlord
10-04-2012, 18:54 PM
Your guess is as good as mine. But exactly when 'on' 1st July would the notice expire? The clause says:



Yet the tenant wishing to vacate 'on 1st July' would have until midnight.

The wording 'after 1st July' surely just means that the notice expires at the precise moment that the day of 1st July ends.

I think you might be thinking too hard.
A notice always expires on a given day, this is in general the last day to comply.
E.g. a notice to quit expires on a given date, and the tenant must vacate no later than that date (even if he can wait until 23:59:59)

westminster
10-04-2012, 18:59 PM
Yes, I may be thinking too hard, but does it make a difference if OP's break clause notice says it expires 'after' or 'on' 1st July, d'you think?

westminster
10-04-2012, 19:00 PM
Also, it's generally agreed that a s.21 shouldn't expire 'on' the last day of a fixed term, because that's [arguably] during the fixed term.

Snorkerz
10-04-2012, 19:32 PM
Yes, I may be thinking too hard, but does it make a difference if OP's break clause notice says it expires 'after' or 'on' 1st July, d'you think?
'After' could imply that the break takes effect on 2nd July. On a s21 the 'after' does not apply to when the tenancy ends, but when the landlord can apply for possession, and the earlies that can be is the day after the tenancy ends.