Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

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  1. #1
    Basic Account Holder BenCov Novitiate

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    Default Calculation of notice period - break clause

    Hello,
    I am currently renting a house with a 12-month assured shorthold tenancy, with a break clause after 6 months which states that "either party may terminate this agreement by giving to the other at least 2 months advance written notice [...], such notice not to expire before 19th March 2011, which this tenancy shall terminate absolutely but without prejudice to any claim etc..."

    The commencement date was on 20th September 2010 and I have advised the landlord on 5th February.
    My understanding was that I would have to pay my rent until: 5th Feb + 2 months = 5th April,
    However, the letting agent has confirmed receipt of my notice to leave and that I should pay until the 19th April (i.e. 2 months + following rent day).

    I can't find any information explaining how a notice should be calculated in this case. I know that within a Periodic Tenancy agreement, it is normal to have the notice finishing on the rent day, but what is the situation with a break clause in a fixed term tenancy agreement (which I understand is my case as my AST run until Sept 2011)?
    Can anybody help me on that?
    Thanks in advance


  2. #2
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    Default Re: Calculation of notice period - break clause

    The LA is correct. The principle is that any notice period should give x months clear notice of intent.
    So you serve Notice on or before 19th Feb, next rent due date is 20 Feb and you move out on the 19th March.

    Note SERVED means received by LL not date posted so allow 2 postal deivery days when posting. If the Notice arrived on the 20th you are into a new rent period so in effect you would have to wait almost 2 months before being able to move.


  3. #3
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    Default Re: Calculation of notice period - break clause

    Have to disagree with Mariner51.

    There is no requirement for a notice exercising a right to break to expire on a rent day unless the provisions of the break clause so provide. Further, no rent can be due in respect of any period after the tenancy ends.

    For the record, a notice to quit must expire at the end of a tenancy period and not on a rent day.


  4. #4
    Basic Account Holder BenCov Novitiate

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    Default Re: Calculation of notice period - break clause

    Thank you both for your replies, though it is a bit confusing.

    Can I summarise to see if I understand well?
    a-if notice after the end of AST (i.e. the tenancy has switched to periodic tenancy), a notice must end at the end of a tenancy period which means the day before rent day (in a classical automatic renewal month after month)
    b-if notice given by the tenant during the AST, using a break clause, the notice does not have to expire on a rent day (=> in my case, 2 months = 2 months/60 days and not 2 months + until next rent day) [anything to support that just in case I need to argue with the letting agent?]

    Thanks again


  5. #5
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    Default Re: Calculation of notice period - break clause

    Quote Originally Posted by BenCov View Post
    a-if notice after the end of AST (i.e. the tenancy has switched to periodic tenancy), a notice must end at the end of a tenancy period STOP HERE which means the day before rent day (in a classical automatic renewal month after month)
    Not quite. You are fine up to STOP HERE. Whilst rent periods and tenancy periods may coincide, they need not. What decides when the tenancy periods of a statutory AST end is the day the fixed term ends. So, if a fixed term ends on, say, 25th March the periodic tenancy must start on 26th March. Subsequent periods naturally follow on and, if the tenancy is monthly, the periods are from the 26th to the 25th of each month. When serving a notice to quit, the rule is that the notice may expire on the last or first day of a tenancy period. (Note: this rule does not apply to section 21 notices.)

    Quote Originally Posted by BenCov View Post
    b-if notice given by the tenant during the AST, using a break clause, the notice does not have to expire on a rent day (=> in my case, 2 months = 2 months/60 days and not 2 months + until next rent day) [anything to support that just in case I need to argue with the letting agent?]
    Correct, unless the agreement provides otherwise.

    There are two points you can put to the agent:

    1. A notice exercising a break clause is not a notice to quit. Accordingly the rules relating to notices to quit do not apply. In any event notices to quit have to expire at the end of a period of the tenancy (and not a rent day - see above) and a fixed term is not divided into tenancy periods - it is simply one period.

    2. Agents are always wrong.


  6. #6
    Basic Account Holder BenCov Novitiate

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    Default Re: Calculation of notice period - break clause

    Thanks Aequitas.

    I like your 2nd point , very convincing



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