Here is a question to the blog clinic from Mark (not his real name), who is a Landlord:
I created a 2 years shorthold tenancy agreement with 6 months break clause. The tenant paid the deposit but not the rent. The tenant did not provide proof of identification and references yet. The tenant has got possession of the property as well. As a landlord can I cancel this agreement which is signed by us both. It seems like Tenant is a trouble maker.
Answer
It would have been better if you had waited to get the reference and ID information before signing the tenancy agreement and handing over the keys. Particularly when giving the tenant a long fixed term.
As this case shows, you should never allow tenants in before the proper checks have been concluded. Or before the mandatory ‘right to rent’ checks have been done.
As you have a break clause you will be able to end this tenancy early, but note that if the tenant fails to move out you will still need to get a court order. Once tenants have gone into occupation, landlords can ONLY recover vacant possession
- By the tenants moving out voluntarily, or
- By a court bailiff or High Court Enforcement Officer acting under the authority of a court order for possession.
You cannot just cancel the tenancy using a break clause and expect that to be enough.
Activating the break clause
Before you do anything, read your tenancy agreement and find the break clause. To activate the break clause you must do what it says.
So for example, if it says you must serve written notice of not less than two months, which cannot be served during the first six months of the tenancy, then you will not be able to do anything until six months have passed after which you will be able to break the tenancy by giving two months written notice.
Activating a break clause is best done by way of a letter that specifically refers to the break clause (giving the clause number) and stating that you are now activating this.
However, as stated above, activating the break clause does not give you a legal right to possession of the property nor does it mean the tenant will have to leave.
A break clause ‘breaks’ the fixed term – but this will be followed automatically by a periodic tenancy. Which will have the same obligations and rights as the preceding fixed term. Meaning that your tenant still has a tenancy and is entitled to remain living in the property.
So, to recover possession (assuming the tenant is not going to move out voluntarily) you will need to get a court order, and then instruct the bailiffs.
Possession claim based on rent arrears
You don’t say how long the tenant has been in occupation or how much rent is in arrears.
If the arrears are two months or more, you can (assuming your tenancy agreement contains the proper clauses) just serve a section 8 notice now and then (after the notice period has expired) bring proceedings based on the arrears. You will not need to serve a break clause first.
Possession claim based on section 21
Although there has been a lot in the press about the government’s intention to get rid of no-fault evictions, they are still with us at the moment. You cannot use section 21 however during a fixed term which is why you would need to ‘break’ the tenancy first.
Section 21 notices cannot be served during the first four months of a tenancy but assuming this has passed, you can serve your section 21 notice at the same time as your letter activating the break clause. Service of a section 21 notice in itself can sometimes be taken as activation of a break clause, but it is best to deal with the two things (activating the break clause and serving a section 21 notice) separately.
You need to be careful when serving these letters and notices, as you may need to prove service later (tenants often deny receipt).
The best method of service which your tenant will find almost impossible to deny is service by hand with an independent witness. With a ‘difficult’ tenant it is often worth going the extra mile and doing this to avoid future problems.
And finally
This case illustrates how important it is to check tenants thoroughly before allowing them into occupation. Not only do you risk letting in a bad tenant, you also risk penalty fines (and technically even imprisonment) if you later find that your tenant does not have a legal right to rent in the United Kingdom.
This is particularly important where, as here, you are giving your tenant a long fixed term. Even though you have a break clause, this (although helpful) is not sufficient on its own to allow you to recover possession of your property.
You could be faced with a long and possibly expensive court claim before you get your property back.
If you are unfamiliar with eviction work it is best to use solicitors as it is easy to make a mistake which could delay things and be expensive to put right.
Alternatively, members of my Landlord Law service will find full details and precedent letters and forms. For example, see this free guide.