Advice needed, given notice but refused by Estate Agent

[burnt]

Hi - I'd like to hear opiniions on this.

 

I have an assured shorthold tenancy, have lived more than 6 months in the flat (1 bedroomed) - joint tenancy with partner. We are expecting a baby and decided that we need to move into something more suitable.

 

When we gave our months notice it was rejected on the grounds that we signed a fixed term tenancy agreement and there is no clause for the tenant to break it until end of 12 months.

 

There is a landlords break clause in the tenancy agreement - but they did not include one for the tenants.

 

Landlords already sent through a section 21 notice at the beginning of the tenancy which had 'periodic tenancy' witten on it.

 

I am thinking that the contract has become unfair and non negotiable - we have stated our reasons for moving and they could accept it.

 

would the contract be disputed, or seen as unfair if this matter was taken further?

 

thanks.

[Kentish Lass]

You have obviously signed an AST (Assured Shorthold Tenancy) Agreement with a term of 12 months. It is a contract and you cannot just break it because it no longer suits you. Why would you think it should be "negotiable" at this stage?

 

Whilst it might be considered unfair that there should be a break clause for the Landlord but not for the Tenant I am not sure that you will gain any benefit from that angle. You could have a chat with Shelter or CAB who might advise you whether this is worth pursuing.

 

The usual action in a case like this would be for you to find a replacement tenant acceptable to the Landlord for your flat. You will probably have to pay the Landlord's costs for this but it might get you out a bit sooner.

 

Regarding the s.21 notice, some Landlords issue this along with the Tenancy as a matter of course... Not something many good landlords would do though - sometimes called "The Sword of Damocles" and not the best way to maintain good relations with your tenants!!!

 

Sorry I can't give you a more positive answer in this case.

[bedlington83]

Whilst it might be considered unfair that there should be a break clause for the Landlord but not for the Tenant I am not sure that you will gain any benefit from that angle.

I'm not a lawyer but it's called reciprocity of contract. In theory if the landlord has a break clause then so does the tenant.

 

OP - what was the date on the S21 notice?

[burnt]

section 21 had the purpose of turning the tenancy into periodic tenancy at the end of the initial 12 months. It is dated September 2009 expiring November 2009. But was posted a few months into the tenancy - with the explanation that this is all standard procedure etc.. which is fine, as I myself work as a Housing Adviser, so I have an understanding of what the terms all mean - but after going through this contract again it doesn't seem fair to the tenant. I have taken advice from colleagues who deal with tenancy issues (that's unfortunately not my specialized subject) and have been advised that the contract would be seen as unfair, and could be disputed.

I am just wondering if the contract still stands, as we seem to have no rights.

 

What is likely to happen if the Agents continue to say we are in the wrong - but we are telling them that the contract has failed on the grounds of being unfair?

 

I am willing to challenge it.

[bedlington83]

You need to get proper legal advice. The contract hasn't failed if one term is unfair. What might happen is that the court would agree that such a one sided term was unfair but that the rest of the agreement stood. I still think your best bet is reciprocity of contract because that will allow you to leave early but talk to a solicitor or shelter.

[Planner]

Could you post the exact wording of what you believe to be the landlords breakclause.

 

Your understanding of the s.21 notice also seems to be suspect, as the purpose of a s.21 notice isnt to 'turn' the tenancy into a periodic at the end of the fixed term, although the s.21 issue is a bit of a mute point as it wont help with your current situation.

Edited July 13, 2009 by Planner

[burnt]

Thanks for all the posts so far.

 

Agreed, the Section 21 doesn't make much difference in this issue. But thought it worth mentioning it has been issued (at the start of the tenancy), and mentions that it will be a periodic tenancy at the end of the fixed term.

 

Landlords break clause is worded:

The landlord may bring the tenancy to an end at any time before the expiry of the fixed term (but not within six months of the commencement date) by giving to the Tenant at least two months written notice stating that the Landlord requires posession of the Property. A notice under section 21 of the Housing Act 1988 will suffice to implement this sub-clause.

[Planner]

Thanks for all the posts so far.

 

Agreed, the Section 21 doesn't make much difference in this issue. But thought it worth mentioning it has been issued (at the start of the tenancy), and mentions that it will be a periodic tenancy at the end of the fixed term.

 

Landlords break clause is worded:

The landlord may bring the tenancy to an end at any time before the expiry of the fixed term (but not within six months of the commencement date) by giving to the Tenant at least two months written notice stating that the Landlord requires posession of the Property. A notice under section 21 of the Housing Act 1988 will suffice to implement this sub-clause.

 

In terms of the s,21 your contract would become a periodic tenancy at the end of the fixed term regardless (unless of course you signed a further fixed term).

 

In terms of the landlords breakclause, it defiantley is one! And should be written so that it works both ways. If the agents arent willing to accept this and you still want to move, then I suppose its fairness is going to have to be tested by the relevant tenancy deposit scheme and/or the courts.

Edited July 14, 2009 by Planner

[burnt]

and I think that is the way i will put it to them. And will also be contacting the TDS.