Question re: (non-existent) break clause being used to serve a section 21 notice of possession

[RaySheep]

This is my first post here, so - hello!

We are 4 months' into our 1 year fixed term AST agreement.

We have just received a section 21 "notice requiring possession", requiring us to leave the property at the end of the first 6 months' of our tenancy.

The letter from the estate agents that is attached to the notice states that "your landlord wishes to action the break clause and we therefore are serving you with a section 21 notice accordingly. The effect of this notice is that the last day of your tenancy will be the 31st May 2011."

However, I was originally advised that a break clause would not be included in our contract!

I've had a read through & can't see anything that seems to be a break clause written in it. However, there is a section that says possession might be recovered on Ground 1 under the provision of Schedule 2 of the Housing Act 1988 or under Ground II of part I of Schedule 2 of the act. The only other clause that mentions possession states:

"This Agreement is intended to create an Assured Shorthold Tenancy as defined by Section 19A of the Housing Act 1988 as amended and shall take effect subject to the provisions for recovery of possession provided for by virtue of Section 21 of that Act. The Tenant shall occupy the Premises as their only or principal home."

Please could you advise if our landlord is able to use section 21 in this way to kick us out, irrespective of the fact that our fixed term contract is for 12 months (& ends on 30th November 2011), not 6 months?

Thanks in advance for any advice you can offer - much appreciated!

Ray

[rebel11]

Hi Ray

 

Welcome to CAG

The guys will advise as soon as they are available.

 

Heres some info:- http://www.communities.gov.uk/documents/housing/pdf/138289.pdf

[RaySheep]

Thanks rebel11 I'll have a read through the pdf AST guide referenced in your mail & look forward to receiving some further advice on this forum!

[rebel11]

Hi Ray

 

Theres good info on the following site:- http://england.shelter.org.uk/

[MrShed]

Well you have signed no break clause, then the S21 cannot be used in this way. Simple as that.

[RaySheep]

Thanks very much for your responses rebel11 & MrShed.

 

I think I will write to my LL + estate agents & say something along the lines of the following:

 

"Dear LL,

 

Re: “Notice Requiring Possession” dated .

 

We are writing to you to advise that we believe the section 21 notice that you have served us with to be invalid.

 

The expiry date stated on the notice is 31st May 2011.

 

The assured shorthold tenancy agreement we signed is for a fixed term of 1 year, commencing 1st December 2010 & expiring 30th November 2011.

 

The contract does not contain a break clause. Therefore, although a section 21 can be served to us at any time during our tenancy, it cannot expire before 30th November 2011.

 

Consequently, legally we are within our rights to stay in the property for the full year of the fixed term agreement.

 

We have always paid our rent on time & have not breached any of the T&Cs contained in our contract."

 

Please could you advise if you think a letter along these lines would be okay? I will personalise it a bit but don't want to include too much information on a public forum.

 

Thanks,

 

Ray

[rebel11]

Let us know how you get on.

[RaySheep]

Will do rebel11!

[Planner]

Thanks very much for your responses rebel11 & MrShed.

 

I think I will write to my LL + estate agents & say something along the lines of the following:

 

"Dear LL,

 

Re: “Notice Requiring Possession” dated .

 

We are writing to you to advise that we believe the section 21 notice that you have served us with, in order to activate a six month breakclause, to be invalid.

 

The expiry date stated on the notice is 31st May 2011.

 

The assured shorthold tenancy agreement we signed is for a fixed term of 1 year, commencing 1st December 2010 & expiring 30th November 2011.

 

The contract does not contain a break clause. Therefore, although a section 21 can be served to us at any time during our tenancy, it cannot expire until after 30th November 2011.

 

Consequently, legally we are within our rights to stay in the property for the full year of the fixed term agreement.

 

We have always paid our rent on time & have not breached any of the T&Cs contained in our contract.

 

If you would like us to move out prior to the end of the tenancy agreement, could I suggest you make us an offer for us to release you. We would suggest that a payment of x3 months rent (£xx) and a further £xx for moving/agency expenses and immediate return of my deposit is appropriate, to be paid in cash prior to our written agreement" (obviously only include this is you want to!!!)

 

Please could you advise if you think a letter along these lines would be okay? I will personalise it a bit but don't want to include too much information on a public forum.

 

Thanks,

 

Ray

 

Minor ammendements above - if you have already sent, not to worry.

 

Just so any other posters ever ask - Assuming there is a breakclause a s.21 notice can be served to activate a breakclause. In fact is quite a clever way to do it.

[RaySheep]

Minor ammendements above - if you have already sent, not to worry.

 

Just so any other posters ever ask - Assuming there is a breakclause a s.21 notice can be served to activate a breakclause. In fact is quite a clever way to do it.

 

Thanks very much for the amendments - I think the added section is great!

 

However, my partner has been to see the estate agents regarding this matter today; they've apparently admitted that there is no break clause in our contract & consequently they do not have any legal right to kick us out before the end of the fixed term!

 

Nonetheless, I intend to send a letter to the LL confirming the non-validity of the section 21 notice by recorded delivery, to cover our backs. I will leave out the paragraph you have added...I guess I should quit while I'm ahead & all that

 

I find it staggering that estate agents can serve such notices without even checking the contract terms first. Many tenants would just accept that the notice is valid & move out, causing them much additional expense & inconvenience.

 

Thanks to all for your help with this matter!

[Ed999]

For reference, Ground 1 and Ground II in Schedule 2 of the Housing Act 1988 are explained here:

 

- Shorthold Tenancy - posession, eviction and notice

 

Those grounds relate to a possession application under section 8 of the Act, the section which provides for early termination in the event of non-payment of rent or any other breach of the provisions in a shorthold tenancy agreement.

[RaySheep]

For reference, Ground 1 and Ground II in Schedule 2 of the Housing Act 1988 are explained here:

 

Those grounds relate to a possession application under section 8 of the Act, the section which provides for early termination in the event of non-payment of rent or any other breach of the provisions in a shorthold tenancy agreement.

 

Thanks Ed999, that's really useful to know.