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Does a 6 month break clause in a 12 month ASTenancy contract mean that it is no longer a fixed term contract after the first 6 months have passed?

(7 Posts)
Alliwantisaroomsomewhere Fri 23-Sep-11 17:56:19

DH and I have a 12 month assured shorthold tenancy agreement with Landlord (LL). LL has told us he will be selling the house so we will be given 2 month's notice. We are currently in our 9th month.

We have found a house we want to move to, but our 6 month break clause says that we must give 2 months notice if we want to end our contract.

The Estate Agent for the house that we would like to move to, has advised me that the LL cannot hold us to 2 month's notice on account of the Housing Act of 2004 which says that tenants need only give one month's notice.

However, my reading of the situation is that we are in a fixed term contract so are liable to for the full 12 months unless we utilise the break clause and then in that case we have to give 2 month's notice.

Am I wrong? Does the break clause effectively negate the fixed term element of the contract such that we now only need to give 1 month's notice?

I would be very grateful for any advice on this matter! thanks!!

10poundstogo Sat 24-Sep-11 00:09:33

Read it again - the devils in the detail, if its the break clause part of the contact saying two months notice then it probably means that if you want out at 6 months you need to give two months ie on month 4 iyswim.

Outside of the 1st 6 months its usual to give a months notice - but most AST's have a fixed 1st 6 months and then go on a rolling month-to-month after that - usually the notice period would end the day before your rent is due, ie if you always pay on 2nd of the month then the months notice would need to end on the 1st.

Yours sounds different: If you are on 12 months fixed than you'd need to give 2 months notice on month 10, as would your LL unless they agree that you can give shorter notice or leave earlier. Strictly speaking you would be liable for the full 12 months, but given the circs you LL might well be flexible.

The other agent is right that usually a months notice is all that is required if you pay rent monthly but this applies once you are out of any fixed terms and into a rolling month-to month tenancy.

look at page 19 for more info - this is a useful guide generally.

Shelter give excellent independent legal advice. I hope your LL is flexible!

10poundstogo Sat 24-Sep-11 00:21:07

I've just re read your post.

If its 12 months fixed then it will be 2 months at month 10.

You can have a 12 month tenancy with only the 1st 6 months fixed in which case its one months notice after 6th month.

So key is exactly how long the fixed part is. Hope that clarifies!

Alliwantisaroomsomewhere Sat 24-Sep-11 07:49:47

Thanks, 10poundstogo. The contract says that the lease commences on 14 Jan 2011 and ceases on 13 Jan 2012. However, after 6 months there is a break clause and if LL or T want to make use of break clause after 6 months then 2 month's notice is required.

New estate agent says we are not bound by 2 month notice clause becauase the break clause means that it is no longer a fixed contract.

I think that it remains a fixed term contract because of the 14 Jan 2011 to 13 Jan 2012 section and thus we are legally obligated to give 2 month's notice (unless LL agrees of course,)

We have to give 2 month's notice, don't we?

10poundstogo Mon 26-Sep-11 22:56:08

It does sound like it. Have you sounded out LL?

Alliwantisaroomsomewhere Tue 27-Sep-11 07:37:58

Hi, 10pounds
It is all sorted - LL is happy for us to move asap and we are happy to leave and settle somewhere else! So it's all good. Thanks for the advice. I thought I was right about the 2 month's notice.

10poundstogo Fri 30-Sep-11 22:42:16

Excellent, good luck in your new home.

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