Ambiguous breakout clause.

[lom]

Hello,

 

I have recently moved out of an apartment during the fixed 6 month term of an assured shorthold tenancy. The landlord accepted our notice and did not mention us needing to pay any rent. However when we asked for our deposit to be returned they said it would not be and have informed "mydeposits" that we will not be due any as we terminated the tenancy early.

 

Our contract contains the following clause "termination by the tenant - If the tenant requires to terminate this agreement, the tenant must give written notice to the company and the period of notice shall not be less than the tenant's notice period i.e 1 calendar month." Would this qualify as a breakout clause? It does not exactly specify that we can end the contract during the fixed term, but it also does not say we can't either. I have read that a breakout clause needs to be explicit but is this ambiguous enough to indicate we are within out rights?

 

And equally, does the fact that they have allowed us to terminate our tenancy without demanding rent imply we have not broken the contract?

 

To me it feels like they want to have it both ways. Either we broke our contract and should be liable to pay rent for the full 6 months, or we haven't broken our contract and we should be entitled to get our deposit back too?

 

Thanks for any advice you can offer!

Edited June 12, 2013 by lom

[Steve__M]

The landlord accepted our notice

 

 

 

How did the landlord accept your notice?

 

Possibly it would be useful to see the other clauses relating to the fixed term.

 

Also, the grammar in the clause is slightly incorrect suggesting that you may have paraphrased it. Is this the exact clause?

[lom]

There is a small typo. It should read "requires" not "required". I have edited the post. Other than that it is exact.

 

The landlord accepted our notice in writing via email. We had also overpaid the last month's rent by accident, which they have returned to us without argument:

 

"Thank you for informing us that you wish to leave your accommodation and terminate your tenancy

agreement after the required notice period of one month on 22nd May 2013. Although your contract

does not expire till the 31st Aug 2013. (Their emphasis.)

 

We do hope you have enjoyed your stay.

Your rent must be paid up to and including this date so please make arrangements with your bank if

necessary to ensure that this is complied with.

Please note: it is not permissible for you to cancel your last month's rent payment because we hold a

security deposit (or it is protected in the Tenancy Deposit Scheme). The deposit is legally a separate

issue from rent payment and you will be in breach of your contractual agreement if you do this.

We will require a forwarding address in case we need to contact you further regarding the return of your

deposit or any other matters.

Please do not leave personal belongings or rubbish in the premises or at the front, side or rear when you

leave. There could be a charge for removal if you do. We want (and we know you do also) to have clean

liveable accommodation to present to the new tenants on their move-in day.

We accept normal wear and tear for the period of your occupation but please note that damage,

breakages and/or cleaning will result in claims for deductions from your deposit.

For example, a full cooker clean costs us £30 and a room carpet clean costs £40, As you can see, items

like these can soon use up your deposit.

May we remind you that the state of the accommodation on entry was recorded by:

(1) Your signed inventory and schedule of condition

(2) Dated photographic / video evidence

Someone will be available to meet you on your move-out day to inspect the premises, to complete the

Check-Out Check-List and outgoing inventory report, to agree final meter readings and to complete the

property hand over."

 

There is a clause about early termination with regards to deposit. It reads: "We may retain the deposit if: the agreed tenancy term is not completed or if the tenant has extended the tenancy term and has not completed the term." However surely if they've accepted our notice this has changed the term and ended it at the date we move out, eg we have not abandoned the property?

 

Also at the back of the contract on a page entitled "the first schedule" there are two confusing clauses

 

1. Deposit is returned only after one month's written notice received, with notice to be given prior to a rent due date. Failure to provide the stated written notice will mean forfeiture of Deposit. Deposit could not be adjusted against last month's rent.

 

2. Once contract is signed, the Deposit will not be returned, in case tenant decides not to rent the place due to change of mind or circumstances, else will be liable to pay the rent for the full contract period. (exact wording, yes the English is atrocious). This is the clause that makes me feel they want it both ways, either we should have to pay all our rent and deposit, or neither.

[Steve__M]

To me it feels like they want to have it both ways. Either we broke our contract and should be liable to pay rent for the full 6 months, or we haven't broken our contract and we should be entitled to get our deposit back too?

 

Obviously you could raise a dispute and see how it goes. As a landlord myself, I would have been more explicit in my intentions up front. But that does not absolve the tenant from having the responsibility of clarifying the agreement.

 

Just to put a view from the landlord's perspective to help your thinking: they will see that they have covered their back with the clause that states:

 

"We may retain the deposit if: the agreed tenancy term is not completed"

 

They have accepted that you are leaving, but as you say, they have highlighted the fact that you are leaving early. Given that you were aware that you were leaving early, you could have asked what the LL intention was.

 

As to having it both ways, many landlords and agents would want to have it one way - that you pay the rent plus expenses for reletting the property. And for many agents, the expenses for reletting a property are extortionate.

 

You have not said whether this was a 6 month extension, or whether you've only been in the property 3 months. If you've only been in the property three months I could understand the LL being a bit upset. It's a pain getting new tenants. Either you go to an agency and get ripped off or you do it yourself and it is very time-consuming and stressful.