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We have been given notice to leave our current property where we have lived for the last 4 years, every year we get a new 1 year assured shorthold tenancy which starts this tenancy supercedes the previous tenancy.

 

My question is there is a special clause attachment stating that neither the landlord or tenant can give 2 months notice to leave within the first 6 months of the tenancy.

 

This new tenancy started on the 12/06/10, but the landlord is saying this clause only applies to the very first tenancy, its not clear in the contract and I would like to know if the 2 months notice to leave is correct.

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Each agreement creates a new tenancy. The terms of your current agreement must apply to the current tenancy. The landlord is almost certainly wrong. To be absolutely certain he is wrong we need to see the exact wording of the relevant clause.

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the clause in question reads

 

It is hereby agreed that in accordance with the Housing Act 1996 the Landlord may terminate this tenancy by giving not less that the required two months notice in writing to the tenant at any time after the commencement of the tenancy PROVIDED that the tenancy shall not be determined before six months from the commencement date of the Tenancy ansy such determination pursuant to the provision of this clause shall be without prejudice to the claim of either party against the other in respect of any antecedent breach or non-observance of the provisions of this agreement.

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It is hereby agreed that in accordance with the Housing Act 1996 the Landlord may terminate this tenancy by giving not less that the required two months notice in writing to the tenant at any time after the commencement of the tenancy PROVIDED that the tenancy shall not be determined before six months from the commencement date of the Tenancy ansy such determination pursuant to the provision of this clause shall be without prejudice to the claim of either party against the other in respect of any antecedent breach or non-observance of the provisions of this agreement.

 

First of all, the Housing Act 1996 does not allow a landlord to terminate a tenancy by giving the tenant two months notice in writing. What the Act says (operating as an amendment to the Housing Act 1988) is that following service of a section 21 notice no court order for possession can be made granting possession until a tenant has been in occupation for six months. Despite the misunderstanding, the terms of the clause are still clear and they apply to the current tenancy.

 

A word of warning: the County Courts have been known to make some strange decisions.

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So does that mean the 1st six months we lived here or can we just sit here until december am also unclear on the fact that this is a tenancy with a 12month term which does not expire until 12/06/11.

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You can stay until at least December! he cant get you out until then at the very earliest

Just take it as 4 months notice instead of 2 ;)

I QUESTION THEREFORE I AM!! [sIGPIC][/sIGPIC]

 

Unfortunately i'm not an expert in any given field legally and my advice and that of the Consumer Action Group and the Bank Action Group is given without prejudice and without liability so please if in any doubt whatsoever seek help from an insured qualified professional. Contents of my posts are purely my own personal opinions and not condoned or endorsed in any way, shape or form by CAG. Thank you! :p

 

 

I have been smoke-free for 4yrs

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Just read this on another site

 

Mandatory grounds on which court must order possession

 

Ground 1

The residential investment property was previously the landlord’s only or main home or the landlord or their spouse require it to live in as his or her main home.

 

This is the reason given for the 2 months notice, in that she has split from her partner and now needs to return to the UK. Am just a little annoyed at the amount of notice we received and we regarded these ppl has friends we have even done our own repairs because they have no work in Spain. And our rent was paying their mortgage to stop the house being repossesed.

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Make them get an eviction notice then, payback! :rolleyes:

 

That'll give you a bit more breathing space

I QUESTION THEREFORE I AM!! [sIGPIC][/sIGPIC]

 

Unfortunately i'm not an expert in any given field legally and my advice and that of the Consumer Action Group and the Bank Action Group is given without prejudice and without liability so please if in any doubt whatsoever seek help from an insured qualified professional. Contents of my posts are purely my own personal opinions and not condoned or endorsed in any way, shape or form by CAG. Thank you! :p

 

 

I have been smoke-free for 4yrs

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The 2 months notice is certainly legally unenforceable but it would probably be accepted by a court as notice requiring possession on 11/12/10. It may be possible for LL to get to court just before that and get a possession order to operate 28 days after that date - 9th January. This is the very best a LL can hope for.

 

I suggest that you talk to your erstwhile friend and explain this. Be understanding about her situation and ask her to be both understanding and realistic about yours. Agree with her that you will go by 9th January at the latest - that gives you over 5 months - but that you will go earlier if you find something suitable. In the meantime, keep paying the rent.

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Sorry, I've not taken notice of the last post of yours. Yes, that mandatory reason does make a difference.

 

I suggest you tell her that you are looking for a new home and certainly do that, but keep her from going to court as long as you need to. In practice she is unlikely to be able to get actual possession for another 5 months unless you move out voluntarily. You can almost certainly find something suitable long before that.

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Just read this on another site

 

Mandatory grounds on which court must order possession

 

Ground 1

The residential investment property was previously the landlord’s only or main home or the landlord or their spouse require it to live in as his or her main home.

 

This is the reason given for the 2 months notice, in that she has split from her partner and now needs to return to the UK. Am just a little annoyed at the amount of notice we received and we regarded these ppl has friends we have even done our own repairs because they have no work in Spain. And our rent was paying their mortgage to stop the house being repossesed.

 

The fact that you have a fixed term tenancy overrides this ground. See section 7 (6) of the Housing Act 1988:

 

(6) The court shall not make an order for possession of a dwelling-house to take effect at a time when it is let on an assured fixed term tenancy unless—

 

(a) the ground for possession is Ground 2 or Ground 8 in Part I of Schedule 2 to this Act or any of the grounds in Part II of that Schedule, other than Ground 9 or Ground 16; and

 

(b) [not relevant because Ground 1 is not mentioned in paragraph (a)]

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Well done, Aequitas, it just shows that you have read every clause in the Housing Acts. Mandatory in one clause turns out be be unavailable in another.

 

So my advice, CompleteTool, is as in my post 10.

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Of course, you could ask her what she will pay you to leave earlier than you legally have to. I don't know what part of the country you are in and how easily you can find alternative accommodation?

 

She might be happy to pay you if she is really desperate and knows that the legal rights are yours.

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The other thing about Ground 1 is that notice of the possibility that possession might be recovered under this Ground ought normally to have been given on or before the start of the agreement:

 

Not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground or the court is of the opinion that it is just and equitable to dispense with the requirement of notice...

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I suppose in this case she could argue that even if she didn't serve formal notice, her tenant was a friend who knew the situation anyway, but I wouldn't have thought that there are many situations in which "it is just and equitable to dispense with the requirement of notice" for this reason.

 

I can think of a lot of other situations in which the tenant's conduct make it "just and equitable to dispense with the requirement of notice" but in those it is not allowed!!!

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