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Tenancy Agreement with a break clause

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  • Tenancy Agreement with a break clause

    I am 99.99% (100%) sure that Di Mayhew will be able to answer this for me and I could email her directly but I thought a thread is always useful for other members seeking similar help.

    I need someone else's interpretation of the following clause in an AST that my son has with three other tenants. The fixed term is 12 months commencing 21st July 2017.

    The clause is as follows:-

    Individually Negotiated Clauses - 35.0 Either party may serve notice at any time to terminate the tenancy by providing a minimum of two months written notice to the other, the tenancy may not end until after 6 months of the initial fixed term of this tenancy. At the end of such notice the tenancy shall end and all obligations and responsibilities shall cease; subject nevertheless to any claim by either party against the other in respect of any breach of any of the terms and conditions of the agreement. For the avoidance of doubt, once the notice referred to in this clause has been exercised it cannot be revoked under any circumstances.

    All four tenants gave notice to quit which was done in writing by one of the tenants (all were in agreement) and wrote that it was given in accordance with the 'break clause' in the tenancy agreement and the agent has confirmed the notice to vacate in a letter dated 1st Feb stating that the tenancy will end on 1st April.

    However, the tenant that gave notice originally has emailed the agent advising that two tenants will not now be leaving and asked for the notice to quit is withdrawn and will need a change of sharer arranged instead and giving details of one person to move in. This was done without my sons agreement and he has advised the agent immediately that this was the case and he and one other tenant were moving out and that if the other two wanted to remain then a new contract should be drawn up.

    One replacement has been found and another is being sought. In the meantime, the agent has told my son that he will remain responsible for any rent due until a fourth tenant has been found.

    My question is, can he be held liable in view of the clause stating that any notice exercised cannot be revoked?

  • #2
    @Diana M
    Last edited by The Tech Clerk; 4th March 2018, 20:26.
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    • #3
      Thank you TC I have sent Di a message with a link

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      • #4
        Originally posted by marypoppins View Post
        clause in an AST that my son has with three other tenants. The fixed term is 12 months commencing 21st July 2017.

        The clause is as follows:-

        Individually Negotiated Clauses - 35.0 Either party may serve notice at any time to terminate the tenancy by providing a minimum of two months written notice to the other, the tenancy may not end until after 6 months of the initial fixed term of this tenancy. At the end of such notice the tenancy shall end and all obligations and responsibilities shall cease; subject nevertheless to any claim by either party against the other in respect of any breach of any of the terms and conditions of the agreement. For the avoidance of doubt, once the notice referred to in this clause has been exercised it cannot be revoked under any circumstances.

        All four tenants gave notice to quit which was done in writing by one of the tenants (all were in agreement) and wrote that it was given in accordance with the 'break clause' in the tenancy agreement and the agent has confirmed the notice to vacate in a letter dated 1st Feb stating that the tenancy will end on 1st April.

        However, the tenant that gave notice originally has emailed the agent advising that two tenants will not now be leaving and asked for the notice to quit is withdrawn and will need a change of sharer arranged instead and giving details of one person to move in. This was done without my sons agreement and he has advised the agent immediately that this was the case and he and one other tenant were moving out and that if the other two wanted to remain then a new contract should be drawn up.

        One replacement has been found and another is being sought. In the meantime, the agent has told my son that he will remain responsible for any rent due until a fourth tenant has been found.

        My question is, can he be held liable in view of the clause stating that any notice exercised cannot be revoked?

        It's not clear from your post whether each of the four tenants signed the tenancy agreement individually giving them joint and/or several liability. And what was the reason for only one tenant giving notice on their behalf - was he named a the Lead Tenant?

        From what you say three of them did not give notice, only one gave notice on their behalf. The question is can that one tenant legally do that (give notice on behalf of a third party)?

        The clause you've quoted says once the notice referred to in the clause has been exercised it cannot be revoked, but the question is can it be 'revoked' by consent which is what seems to have happened (two of the tenants have decided to stay and the Landlord has accepted that).

        One new tenant has been found but does that one replace your son or the other 'sharer' and what says that the new tenant isn't going to replace your son?

        Was there a deposit paid at the start of the tenancy?

        Di
        I am a Litigation Executive at Joanna Connolly Solicitors a firm which specialises in consumer credit. If you need to contact me you can send a message by clicking on my username or by emailing me at di@joannaconnollysolicitors.co.uk or by telephoning 0330 053 9340.

        Any posts I make on the All About Debt Forum are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide on the forum is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

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        • #5
          I'm so sorry Di!

          I don't get notifications nowadays but I had read your post and completely forgot to reply!

          Briefly though, it was a joint and several tenancy there wasn't a lead tenant but they had all agreed that they wanted to go and one person had left and been replaced. Then another tenant decided to stay and told the agents to ignore the notice to quit, without discussing it with anyone else. My son told the agents immediately that he had no intention to stay but the agents didn't answer any emails that he sent to them.

          However in the end, they did find someone else to take his room and the deposit was handed over from one tenant to another so no financial loss fortunately.

          He is finally in a property that although shared, the tenancy is on a single basis with no fixed term and one months notice can be given either way to leave. PHEW!

          Thank you for responding, hope you are keeping well.

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