Here is a blog clinic question from Dominic who is a tenant
I have an AST with an eight month break clause. I have been in the property since May 2008 and renewed this contract (at the behest of the letting agent ) every year since then. I have paid rent on time by standing order and kept the place clean and tidy – dealing with the landlord directly over repairs and problems with the flat roof – to keep their costs down
I have just given the required two months notice only to be told by the letting agent that the break clause refers to the last time I renewed the contract ie May 2012 not the time I took out the original lease in 2008.
The lettings agent says he will talk to the landlord to see whether he agrees a break but says
“If he does agree, you will be charged for the early termination of your tenancy.”
As this could be rent up to January 2013, this would completely scupper my plans to buy a house which is due to complete in the middle of September.
My understanding that the six month clause was put into the housing act to prevent landlords from evicting tenants at a whim, not to line the pockets of lettings agents.
Would a court of law side with me or the lettings agency?
It is always difficult to answer questions about a clause in a tenancy without seeing the wording, but I suspect that the agent is correct here.
Each tenancy agreement is a complete new contract, so if it has a break clause that says it can’t be used until the tenancy is in its eighth month, then it means eight months into THAT tenancy agreement, not the one you signed a couple of years ago.
The whole point of a fixed term is that it gives security to both landlord and tenant for a set period of time which both commit to by the signing of the agreement.
I am not sure what you mean by the housing act – so far as I am aware none of the housing acts deal with break clauses. If you are referring to the fact that assured shorthold tenants cannot be evicted under s21 during the first six months – it is true that this is the very first six months only, but we are talking here about you giving notice here under the break clause in your tenancy. So that is not really relevant.
Probably the best thing to do would be to try to find a replacement tenant to take your place. If you did this and paid for the referencing and associated costs, your landlord would probably be willing to let you leave early as it would not involve him in any extra expense.
Most landlords will be happy just so long as they have a decent tenant in place who is looking after the property and paying rent.
We don’t alweays agree Tessa(!) but here you are 100% right I believe.
It all depends on what is in each tenancy agreement. The fact it is a new tenancy of course means the deposit must be reprotected each time so although ther money may always have been insured or with DPS I’ll bet the PI has not been re-issued each time, so Dominic should advise the landlord he is in for return plus up to x3 deposit penalty award but then agree not to sue if Landlord lets him leave without penalty.
The first 6 months comment is also spot on – it is first relationship between the parties only, not subsequent renewals IN SAME NAMES
Thanks for your replies. Could you explain what a PL is please and what process the lettings agent should have followed.
The latest is that the landlord has agreed to breaking the clause, but the lettings agency is demanding a £1500 “re-letting fee” which they are asking us to “agree” to before re-letting the property. I have repeatedly asked what costs this covers but have failed to get a reply. There is nothing in the contract about this. We have volunteered to find new tenants but the lettings agency says this is not possible becasue they charge the landlord this “high fee” for re-letting. Is there anything we can do. Many thanks
Industry Observer is referring to the prescribed information that landlords or agents need to give to the tenant when the deposit is protected. You will find information about it elsewhere on this blog.
The problem you have is that by signing the tenancy agreement for a new fixed term you are strictly speaking legally bound by that.
I have to say though that the agents demands sound pretty unreasonable to me.
You may be able to get somewhere by quoting the Office of Fair Trading’s view (in their 2005 guidance published on their website) that any clause which forbids assignment of the tenancy after three months (assuming there is no other get out) must be void.
However I know not everyone agreed with that.
Dominic
Tessa is right again and I agree 100% with the OFT angle. In fact if the agent you are dealing with is not a member of anywhere else you can complain to about them (ARLA, NAEA, NALS, TPO etc) then I would definitely refer this agreement and how they say you are bound by it to them.
One other OFT thought.
They are VERY critical of situations where no tariff of fees was issued to tenants prior to the tenancy commencing, so you know what fees may be chargeable in what circumstances as and when they arise during or at the end of the tenancy.
If you had no CLEAR idea what fee may be chargeable – and clearly this agent is making it up as they go along. In fact their position is scandalous they are saying you have to pay just so they can earn a “high” fee. Personally I’d take first free advice from a no win no fee Landlord and Tenant Law specialist solicitor as they’d wipe the floor with them over this.