How to interpret this confusing break clause?

Here is a question to the blog clinic from John (not his real name) who is a tenant:

I am a tenant and want to leave my current address by exercising a break clause, if I may, but I am unclear when I am supposed to exercise. The tenancy agreement is an Assured Shorthold Tenancy Agreement, fixed term 12 months…

“term shall be from and including 15th August 2011 to and including 14th August 2012 and then monthly periodic but may be ended earlier by either party giving notice under clauses 31.1 and 31.2“.

First issue is that there is no 31.1 and 31.2, or indeed any 31.x- the last clauses in the contract are infact 30.1 and 30.2 under the heading “Break Clause”. It seems obvious to me that this was an error and it was supposed to refer to 30.1 and 30.2 not 31.1 and 31.2 since without any 31.x clauses the prior statement was meaningless.

Anyway, here is 30.2 which relates to when tenant can supposedly give Break Clause Notice (if valid):-

“The Tenant may give the Landlord at least 1 months’ written notice not to take effect until after the end of the fifth month of the Tenancy and not to expire any earlier than the end of the first six months of the Tenancy or thereafter, of his intention to leave the property by serving notice upon the Landlord in accordance with clause 29.1. Such notice must also expire at the end of the relevant period, being the day before rent normally falls due, which is the 14th of the month. Upon the expiry of this notice this Agreement shall cease except the Landlord or the Tenant can pursue their legal remedies against each other for any breach of any pre-existing rights under the Agreement apart from the pre-exisiting right to a fixed term contract which is subject to the break clause“.

Since the fifth month ended on Jan-14, my understanding is that I would not have been able to give notice until Jan-15 at the earliest. And the notice would have to expire at least one month later, which could be Feb-14 or Mar-14 or indeed the 14th of any month?

Since we have passed the Jan-15th date, am I still able to give notice at any time until the fixed term ends provided that the notice expiry ends on the 14th of a month, since now in late January the next one being Mar-14?

Or this break clause a “one shot” break and I have missed the opportunity to give notice? I am really confused by the wording, especially the use of the word “thereafter” in the first sentence of 30.2!

Thank you in advance for any help!

Hmm.  Thats a bit of a dogs dinner of a clause and no mistake.  I suspect it could fall foul of the Unfair Terms in Consumer Contracts Regulations 1999 save that it would be unfair on you.  So if there was any kind of dispute about its interpretation, the Judge should chose the interpretation most favourable to you.

However from my reading of it, it sounds as if so long as your notice neither takes effect nor expires before the fifth or alternatively the sixth month, you should be OK.  Make sure you give not less than one months notice expiring on the next 14th day of the month.

Although you could add a sort of ‘saving wording’ in your letter.  Saying something along the lines of  ‘If this date does not comply with the break clause at clause 30.2 of my tenancy agreement, then the earliest date which will satisfy the requirements of this clause.’

It might be an idea to request the agents to respond with in 7 days confirming the date that you have provided is correct, and explain that you find the clause difficult to understand.  If the agents have been difficult in the past, serve it by hand and take an independent witness with you.