Agency does not recognize right to serve notice to vacate

[wipinho]

Dear CAGers,

 

hope someone can shed some light on this

 

On the 17th January 2014 I sent a notice to vacate to both my landlord and letting agency via Royal Mail first class sign for service telling them it was my intention to vacate the property from the 2nd March 2014.

 

This was done under the understanding I make of the attached part of the contract on clause 4 under section "Ending the contract"

 

Today I received a letter acknowledging receipt of notice and "reminding" me that I have entered an agreement for 12 months that because I am not allowing the contract to reach its term I am responsible to pay rent as every other bill to the house. I am also liable for payment of early termination penalty regarding the fees the landlord paid to the agency.

 

My reading of this is that if I am allowed to terminate the contract at any time then I should not be responsible for either the rent or the penalty since I follow the conditions they determine in the agreement...

 

All help greatly appreciated.

[fkofilee]

Try putting those images as PDFs or try putting them in a word documents and converting them to PDF... CAG downsizes the JPEGS.

 

I have good eyesight but even this is making my eyes hurt xd

[citizenB]

You will need to convert your images to pdf format and reload them, they are quite difficult to read as they are .

 

follow the instructions below

 

Dx100 – Instructions on uploading pdfs

Scan the required letters/agreements/sheets

as a picture file

remove all personal info including barcodes etc. using paint

but leave all figures and dates.

Go to one of the many free online pdf converter websites

convert the image to pdf format.

or if you have PDF as an installed printer drive use that

open a new message box here

hit go advanced below the message box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB: you can set where it goes in the post by hitting insert inline.

Then hit reply button

 

 

[wipinho]

Sorry!!

 

Let me know if you would need more info

[fkofilee]

WEll my thoughts would be if you signed for 12 months, youre stuck for 12 months but, i can be a bit unrealistic at times.

I think that the other guys here could help a bit more

[wipinho]

I would assume that the following would apply (taken from Shelter website)

 

"If you have a fixed term tenancy with a private landlord and you want to leave before it’s due to end, your landlord can insist that you keep paying rent for the full length of the tenancy. You can’t simply end it by giving notice.

 

There are some exceptions, for example if your tenancy agreement contains a break clause that allows either side to end the agreement before the end of the fixed term."

 

EDIT:

 

It states I can end it "at any time" so can the LL serve an S21 with 2 months notice. Surely it doesn't refer to 2 months before end of contract as that in itself states the contract ends unless renewed

[citizenB]

I am reading that you can indeed withdraw from the contract with one month's notice and served on them as you have done. It might be worth you having a word with Shelter to see if they agree with the way in which we have interpreted that contract.

[mariner51]

Can OP confirm this is for a residential property (AST) and not a commercial or Contractual tenancy.

If residential then date T commenced, rent period & fixed term duration.

[wipinho]

It is indeed a AST.

Start date 29 September 2012 for 12 months with end on 28th September 2013 at which time a new period of 12 months was agreed starting 29th September 2013 (ending 28th September 2014)

[raydetinu]

how was the extending period agreed?

by signing a new contract or letter, or just going into a rolling PST?

if on a rolling periodic then your notice is OK. min one months notice but must end the day before a rent date i.e. 28th Feb 2014; if LL agreeable may extend to 2nd March.

[wipinho]

New period agreed with new contract signed. same lettering different period (i.e. 12 months to 28 Sep 2014)

Edited January 23, 2014 by wipinho

[wipinho]

After speaking to Shelter adviser he is of the same impression as me and citizenB. I will send them the full agreement via email and wait for reply just to make sure we are not missing something.

 

I'm not sure an agency would be incompetent to the point of sending me a template and drawing to conclusions without some kind of assurance. Don't know what to think honestly.

[Lea_HTH]

I think you're all ignoring the condition of giving that notice. It says 'you may end this contract by giving us at least one month's notice in writing that you will give up the property on the date shown on the notice referred to in condition 1.'

 

The pertinent part of that is what is 'condition 1' (is it point 1 of the 'ending the contract' section, or is it condition 1 on another page of the tenancy agreement?). If it is point 1 of the ending the contract section, then notice by the tenant can only be given if a s21 notice has been served on them, and even then, their notice pertains to the date given on the s21, not their own chosen date. If 'point 1' and 'condition 1' refer to different things, then we need to see what 'condition 1' is before deciding if there is room to break the contract.

 

Normally a 12 month contract cannot be ended unless it includes a break clause, such clause to be made effective only after the six months statutory protected period. The section included in the PDF does not refer to a break clause, which normally gives a specific period of time when it can be activated.

 

I hope Shelter actually had a look at the contract before interpreting it the way you say they have.

[mariner51]

That is a confusing TA open to various interpretations IMO.

AIUI there is no 'protected' period of 6 months, only that Court will not consider a s21 claim within 6 months of T commencement.

Based on OP reply #11 I think a Judge would decide a new 12 month fixed term AST had been created with expiry date 28 Sep 14, so OP is committed to rent & property to this date unless mutual surrender or T re-assignment can be agreed with LLserve

During fixed term, T cannot serve valid NTQ to expire before end of FT, neither can seek repo by valid s21b.

 

 

If you want day 2 day flexible accom, stay with parents,, accept friends offer of couch or rent a room (hotel or B&B)

anything else requires longer term committtment

[wipinho]

This was my doubt as well.

 

But in a previous point in the "ending the contract" section they refer to clause 1 as "term 1".

 

Also I see no point on being able to serve notice to end a contract when a s21 does that, although it is depending on court decisions. An S21 being served and tenant wishing to leave would not need a notice in writing from tenant just acceptance of the notice given by landlord under section 21 or not even acceptance, just vacating the premises...

 

The way I read it the OFT is clear about at least 2 issues with this interpretation:

 

a)The LL having the right to terminate and the tenant not having a similar right with constitute a biased agreement towards the LL and thus an unfair contract.

b)When a contract wording is not clear and subject to various interpretations then the interpretation to be taken is the most favorable to the consumer.

 

My interpretation of term 4 (honestly!) was

 

The tenant may end this contract as long as he meets these conditions

 

condition 1 - a one month notice is served

condition 2 - this notice is in writing

condition 3 - the notice is sent by signed post or handed personally to our offices

 

Also they clearly say "you may give the notice at any time", not at anytime during the 2 months notice for S21 which would in practice give me a month window...

 

In anyway I will send the full contract to Shelter before I reply to letter. I do have about 5 weeks to deal with this but still open to ideas guys. By the way thank you to everyone that has been losing their time with this. Greatly appreciated

[Steve__M]

Also I see no point on being able to serve notice to end a contract when a s21 does that, although it is depending on court decisions. An S21 being served and tenant wishing to leave would not need a notice in writing from tenant just acceptance of the notice given by landlord under section 21 or not even acceptance, just vacating the premises...

 

The landlord does not have to serve a section 21 notice. The landlord can choose to let the contract roll over into a statutory periodic tenancy. So there is a point in including this term:- it is to try and ensure that the landlord knows if a tenant is intending to depart on the last day of the fixed term.

[wipinho]

Thank you Steve.

 

Mariner I understand the commitment and I would not leave the property just because.

The reasons for leaving are deeper than just the reading of the contract and me thinking "Oh cool we can leave" and are mostly related to the noise from the upstairs neighbors which is affecting both my 20 months daughter and my partner's sleep. So we're not leaving just because. But since the noise comes from a neighbor and the fact that 2 families live in a 2 bedroom flat is not the responsibility of my LL I can't force her to do anything (I've asked and been told "Well it's a small neighborhood and we must all live in harmony"but I can't act, as I've been told about my front door having a 4mm gap and being warped from the start of the tenancy "Well it's an old house and it is a good thing because ventilation is important").

The noise is also not loud music nor anything like that, it's just the day to day living of 2 families (6 people in total counting the children) that happen to think that kids running at 11pm is normal but that stops my daughter's sleep. have you ever seen a 20 month old with bags under the eyes?

 

But this is just ranting, it is the underlying cause and I have told the LL of it when I sent her an email telling her I would be sending a notice.

 

Although I really appreciate everyone's input I can do well without moral lessons like "If you want day 2 day flexible accom, stay with parents,, accept friends offer of couch or rent a room (hotel or B&B) anything else requires longer term committtment"

 

I am leaving because I must and because I read the contract in the way I said before

[Lea_HTH]

That is a confusing TA open to various interpretations IMO.

AIUI there is no 'protected' period of 6 months, only that Court will not consider a s21 claim within 6 months of T commencement.

Based on OP reply #11 I think a Judge would decide a new 12 month fixed term AST had been created with expiry date 28 Sep 14, so OP is committed to rent & property to this date unless mutual surrender or T re-assignment can be agreed with LLserve

During fixed term, T cannot serve valid NTQ to expire before end of FT, neither can seek repo by valid s21b.

 

 

If you want day 2 day flexible accom, stay with parents,, accept friends offer of couch or rent a room (hotel or B&B)

anything else requires longer term committtment

 

I can see why people are confused by the tenancy agreement - but the interpretation of clauses is taken as a whole in law and also in relation to any references within the clause to other sections within the contract. Therefore, as I said, the reference to condition 1 is relevant.

 

I am not here to teach anyone the law, but there IS a statutory protected period of 6 months - except in the case of replacement tenancies, which of course OP's is...but that doesn't mean that there isn't a period of 6 months of an AST that isn't protected by statute because the relevant statute clearly states as much.

[Lea_HTH]

OP, you may do better trying to negotiate your way out of the contract with the LL, as even if this ends up in court and the clause you refer to is seen as unclear, it'll either be struck out or ignored, and then you are back to where you started, with a 12 month contract.

 

It might be cheaper and less stressful for you and your family to simply assist with the remarketing of the property and the payment of the fees to do so - and move out when a new tenant is found, rather than leave the LL with a void period where he is entitled to continue to claim rent from you under the contract.

[wipinho]

Thank you Lea and I understand your reasoning. But although I could try to reach a common ground so that LL doesn't lose too much I don't think I could be forced to.

 

Ideally everything would be dealt with in good faith. from my understanding of the contract I acted in good faith when I emailed the LL to explain the why I was actioning a clause I believe exists when a notice would sufice, in good faith I allowed 6 weeks instead of the month notice I understand the contract to allow me. Do believe me that I am not acting in bad faith and do think the contract has a break clause. If that clause is due to various interpretations then the fault is with the person that produced the agreement not with me, as I signed a document based on my understanding of the clauses.

 

Surely you'll agree with me that by using a term I believe exists in the contract allowing me to do something I could not foresee that it would cost me any kind of penalty. You can't penalize for what you allow.

 

It is also my view that legally there is such a thing as ambiguity, and that ideally ambiguity should not be present in legally binding agreements. If ambiguity leads to disagreement then ambiguity cannot be disregarded as you say, it wouldn't be fair to struck out or ignore the very reason of a disagreement. It would be like saying "well this clause no longer is written on the contract so you have no basis to your claim that you were allowed to break it" "No! The clause is there and it was its presence that lead me to ending the contract" we cannot ignore the cause of a dispute when solving a dispute.

 

Does this make sense?

[Lea_HTH]

Unfortunately I don't agree with you - 'believing a term exists' and it 'actually existing' are two different things. My reading of the term in its entirety is that it relies on something in 'condition 1' - no judge would read that and not ask 'what is condition 1'...the judge isn't interested in other people's 'understanding' of the clauses (unless it is mutual understanding or the reasonable man's understanding), but in the reading of them and the interpretation. If a judge finds it ambiguous and unclear, he'll strike it out as if it never existed. There is no 'ambiguity legally' - it either IS or it is NOT in law - and that is what the judge decides.

 

That said, I don't think the clause is ambiguous - it relies on 'condition 1' to clarify.

 

A judge would look to what you understood yourself to be signing - a one year tenancy agreement - not to whether you understood the terminology of the get out clause. For the record - nowhere in anything that you posted have I seen anything that could be construed as a break clause.

 

Whilst I understand your frustration, unfortunately I can't see that your arguments make sense, hence stating that negotiation is probably the way forward. I don't think you'd win if the LL decided to sue you for any void periods he suffers due to you leaving before the end of the tenancy term. I have given you my view based on the information you provided and the clause as it is written in your contract.

 

What you choose to do is entirely up to you, but at least you have an alternate view to your own interpretation, so you are forewarned as to what could happen (that's not to say it will happen). I still believe negotiation is the way forward.

[fletch70]

The main issue is that without seeing the whole contract no one can give a definitive answer.

 

Having said that , the letter from the agents does say that you are responsible for the rent and utilities up until a replacement tenant is found. This would seem to me to be reasonable as I would expect a contract to be a two way thing providing protection to both parties.

 

My ex was in a similar position and it took ethe agents about a month to find a new tenant .

[stu007]

I think to clarify matters we may need to see the whole TA verbatim and not just that on section Ending Tenancy.

[raydetinu]

Yep we need to see all the contract, as that is what a judge would want to do!

If LL does not agree with you and you leave then LL mat well take you to court and it will then be up to judge to interpret the clauses, that's what they are for.

[Beatrice Bee]

If the LL re-lets the property after you move out, he can not charge you rent for the period during which the property is let to new tenant.

 

He has to mitigate his loss.

 

When it says you can terminate the agreement with one month notice, by law it means after the fix term comes to an end, you can, or you can just move out on the last day of the tenancy without giving notice. And then you get no reference so no one would do that.

 

You contracted for the 2nd 12 months: you responsible for paying the rent for the new 12 month term.

 

You are not responsible for paying the bills after you move out whenever it happens. Or LL means council tax? Clearly, when it is the next tenant using the utilities, you can not be responsible for paying them so a final meter reading and a letter to the suppliers that you moved out and you request that the final bill is sent to your new address which is ..

 

You have a right to quiet enjoyment of the property and unless it is stated in the tenancy agreement, you do not have to allow access to potential buyers. It will be difficult to sell it without anyone viewing the property.

 

"You may give notice at any time" makes me believe during the fix term as well. "You may terminate the tenancy with one month notice" would mean after the fix term, you may.

 

If they really want to sell up, they will come to an agreement with you because it will be trespass if a potential buyer sets foot in the property and tenancy agreement says nothing about you having to provide access to potential buyers.