Contract issue

[NZMumma]

Hi, this is the first time I have posted but I have read some good responses to other peoples queries so I thought I would give it a go...

We are NZ'ers living in the UK and working on contract. We signed a tenancy agreement (common law as above 25000 per year in rent) for a fixed period of 2 years with an outclause after the 6 month mark as long as we gave 2 months notice. We have been here 1 year and 8 months and are leaving to return home in September and have handed our notice in only to hear that the clause in the contract we signed states we must leave in the first 6 months only by providing 2 months previous notice. This was never our intent as we could never commit to the full 2 years and we believe the agent has conned us as he knew our intent. We are now afraid that he may take us to court and we wont even be in the country to represent ourselves. We are also nervous about how this will affect us if we ever wish to come to the UK on holiday or whether it could follow us to NZ. Extremely stressed out!

[Aequitas]

First, let's see the clause so that we can have a go at deciding what it actually says.

 

Secondly, if the clause does have the effect the agent says it does that is not necessarily fatal. You do though need to show what was intended, and that may be difficult if there is nothing in writing.

[NZMumma]

The break clause states:

If either party shall desire to determine the term hereby granted on the 30th day of April 2009 the person desiring to determine shall give to the other party not less than two months previous notice in writing of such desire and (in the case of determination by the tenant) shall up to the time of such determination pay the rent and reasonably perform and observe the covenants on the tenants part hereinbefore reserved and contained then immediately on that date this agreement and everything herein contained shall cease and be void but without prejudice to the rights and remedies of either party against the other in respect of any antecedent claim or breach of covenant.

 

The date mentioned is the 6 month mark of the tenancy so I think the problem is the word 'previous' and the fact that it is stated on this date , not on or after. Unfortunately we didnt pick up on this at the time, as we trusted the agent and thought we all understood the intent. We only had discussions around this, nothing in writing. The only thing we do have is a draft one of the contract which clearly stated our intent but the agent then changed this and we signed this second contract. Appreciate your feedback...

[NZMumma]

Another clause which scares us is this:

The landlord and tenant agree that;-

If the said rent or any part thereof shall be in arrear for at least seven days after the same shall have become due (whether formally demanded or not) or if the tenants shall commit a breach of any of the several agreements and stipulations herein contained then and in such case it shall be lawful for the landlord at any time thereafter to re-enter upon and take possession of the premises and of the said furniture and effects but without prejudice to the other rights of action which the landlord may have to recover all such rent in arrear and damages in respect of any breach of this agreement.

I believe he would need to go to court before taking possession but because we are on a common law tenancy agreement, I am not 100% sure...

[Webranger]

It's certainly not legal for a landlord to take possession of furniture and chattels without a court order in an assured tenancy (which yours will become on October 1st) and I doubt if it is even under a common law tenancy.

 

If what you say is accurate, then it seems clear that your draft agreement said, "on or after 30th day of April 2009" and the agent, either deceitfully or inadvertently, omitted the "or after" in the final document.

 

I advise writing to the agent (keep a copy) with a copy of the draft agreement saying that you assume at present that the omission was inadvertent and you expect them to accept your notice as in the original intent, but that if they try to enforce the full term, then you will oppose then vigorously and allege that the omissions was deliberate and deceitful.

 

You are only talking about a two month shortfall so they will probably give up when faced down. The only real problem is if you have given them a deposit and they refuse to return it. In that case, take the initiative and threaten to sue, issue a pre-action letter, start an action if necessary. They will almost certainly climb down.

 

Don't be stressed out, there won't be a judgement against you, if there were it couldn't follow you, and it most certainly wouldn't have any bearing on you returning to the UK.

[Kentish Lass]

I think you will find that a common law tenancy is the terms of the contract as signed by both parties. There is not the same protection against apparently unfair clauses in a tenancy contract under common law as there is for tenants covered by an AST. The fact that they changed the wording in the final contract does seem like sharp practice.

 

The wording of the break clause in some ASTs has the same effect as that in this contract (e.g. the break clause can only be exercised AT 6 months and if not used at that time, the AST remains in effect until the end of the fixed term).

 

Great advice from Webranger! I concur with everything he/she says.