Connie, who is a tenant, has a blog clinic question about ending her tenancy:
I want to know if I have to stay for the full 6 months of my tenancy or can leave now by give one months notice. These are the term stated in my tenancy agreement
Term
. the term of the agreement is for 6 months to commence at 12 noon on 4th July
. upon the greater of one month notice and any notice requires under the act, the landlord may terminate the tenancy under the agreement without cause or reason
.upon the greater of one month notice and any notice requires under the act, the tenant may terminate the tenancy under the agreement without cause or reason
.should the tenant remain in possession of the property with the consent of the landlord after the natural expiration of the agreement,a new tenancy from month to month will be created between the landlord and the tenant which will be subject to all the terms and conditions of this agreement but will be terminated upon the landlord giving the tenant the notice required under the act.
Well Connie, that looks like a break clause to me, although it is not a very clear one. It does not say (at least in your extract) what act they are referring to, although I assume it is the Housing Act 1988. (By the way the last paragraph does not apply to your situation as it is saying what will happen if you stay on after the fixed term has ended.)
In section 21 of this act a landlord has to give not less than two months notice to end a tenancy. There is no reference to how long a tenant should give (that I can remember).
I suspect that you should be able to end the tenancy on giving not less than one months written notice, which is the common law notice period for a tenant paying rent monthly (I assume you are paying monthly), although it may be safer to give the landlord two months notice.
What does anyone else think?
In terms of the Housing Act 1988, the break clause cannot be used before the expiry of the first 6 months of the tenancy.
It is standard procedure to provide at least 2 months’ written notice when utilising the break clause.
Not sure thats right Chris. Landlords cannot get a possession order under s21 within the first 6 months of the tenancy, but there is no reason why the parties should not end the tenancy early if they so agree.
The law was different before February 1997 (when a condition of an AST was that it had to be for not less than 6 months) but this was changed by the Housing Act 1996.
The effect of serving notice under a break clause is to end the fixed term at notice expiry.
From the tenant’s POV, this means that he can vacate at the expiry of his notice under the break clause and the tenancy/his liability for rent will end. Also, assuming it’s an AST, the tenant’s notice will prevent a periodic tenancy arising (s.5(2)(b)).
From the landlord’s POV, serving notice under a break clause is separate to the requirement to serve notice under s.21. Having first exercised the break clause, the landlord is then able to serve a s.21 notice expiring at the end of the newly-shortened fixed term.
Break clauses are more often drafted to require the landlord to give two months’ notice, so that the notice may, in addition, simultaneously fulfill the requirements of s.21 – however, the notice under the break clause can be of any length, and served separately and prior to a s.21.
Nothing in HA1988 prevents the tenant or landlord exercising the break clause during the first six months of the tenancy, but, as Tessa points out, the landlord cannot obtain a possession order to take effect earlier than six months after the start of the tenancy.
As for Connie’s question; I think she can give can notice under the break clause if she gives ‘greater’ than one month’s notice (one presumes at least one month plus one day), although it’s not made clear to whom she must serve this notice or whether it should be in writing.
I see no reason why it would be safer to give two months.
It’s a very poorly drafted contract if this extract is anything to go by.