I am a solicitor with over 15 years experience. I will try to help you with this.
Your first step is to look at your tenancy agreement and see what the notice provisions are. Did you date them 28th August, was that correct and when did you post/email them?
The earlies date we could give notice for our tenancy was the 28th August, we dated the letter for the 28th August but then didnt send the letters out until the 8th of spetember, we had to send to 2 different address a copy of the letter which we did and the acknowledge they received them but they now say they received them to lae 9 and 10 days to late.
Kerry Edwards LTD
1 Ambleside road
We are givng our 6 month notice for termination of lease for unit 7 Radfords field, Maesbury Road, Oswestry, Shropshire SY10 8RA from todays date 28/08/2013.
Could you please respond at your earliest convenience acknowleging you have received this letter and also with a date that the contract will end.
Appreciate a speedy reply
Attahced is a copy of the letter we sent to end the tenancy
HJere is a copy of the agreement also
AGREEMENTPARTICULARS OF TENANCY__________________________________________________________________________________AGREEMENT DATE 2012__________________________________________________________________________________Parties(1) ADVANTAGE (GP) LIMITED company registration number 06051161 (for and on behalf of and inits capacity as the general partner of PXP WEST MIDLANDS LIMITED PARTNERSHIP companyregistration number LP012091) and ADVANTAGE (NOMINEE) LIMITED company registrationnumber 06082581 (for and on behalf of and in its capacity as the general partner of PXP WESTMIDLANDS LIMITED PARTNERSHIP company registration number LP012091) whose registeredoffice is Centrix House Crow Lane East Newton Le Willows St Helens Merseyside WA12 9UY(“the Landlord”)(2) KERRY EDWARDS LIMITED company registration number 07559382having its registered office at 145-157 St John Street London EC1V 4PW (“the Tenant”)(3) XXXXX XXXXXofXXXXXOswestry Shropshire SY11 2YJ (“the Guarantor”)____________________________________________________________________________________The PropertyUnit No 7 on the Landlord’s Radford’s Field Industrial Estate (“the Estate”)at Off Maesbury Road Oswestry Shropshire SY10 8RAas more particularly shown on a master plan (“the Master Plan”) at the office of the Landlord at: Centrix @Keys Keys Business Village Keys Park Road Hednesford WS12 2HA____________________________________________________________________________________The TermThree years fromand including("the Term Start Date") but determinable asset out in Clause 4.____________________________________________________________________________________Rent(a) The Principal Rent £1025.83 per month plus VAT(b) The Maintenance Rent £139.90 per month plus VAT (“the Basic Rate” which shallbe subject tovariation in accordance with the Schedule Part I in respect whereof the Base Figure is 238.0 )(c) The Principal RentStart Date2012(d) The Maintenance RentStart Date2012____________________________________________________________________________________Performance DepositPerformance Deposit £1398.86 One Thousand Three Hundred and NinetyEight Pounds and Eighty Six PenceThe Rent Cesser Period 2 Years____________________________________________________________________________________Specified Use (if any) B2 General Industrial____________________________________________________________________________________21. THE Landlord shall let and the Tenant shall take the Property Together with the Landlord’s fixtures andfittings in the Property and the following rightsa. free and uninterrupted use for all services or supplies to the Property through all common drains,pipes, wires and cables in or over the Estateb. the right to use the access road on the Estate with or without vehicles for the purpose of accessto and egress from the Propertyc. the right to use any service areas designated by the Landlord on the Master Plan for the purposeof loading and unloadingEXCEPTING AND RESERVING to the Landlord and all persons authorised by ita. free and uninterrupted use for all services or supplies from the remainder of the Estate of allcommon drains pipes wires and cables in or over the Propertyb. the right at all times to use the Reserved Parts (if any) for purposes suited to the manner in whichthe Reserved Parts are laid out (including where appropriate the passage parking or loading ofvehicles thereover or thereon)c. the right to build upon alter or otherwise use the land or buildings adjoining the Property as theLandlord sees fit notwithstanding any interference with the access of light or air to the Propertyd. the right to enter the Property to inspect and to make repairs alterations or additions to any otherproperty or service media of the Landlord or to the Reserved Parts (if any)e. the right to enter the Property for any other purposes mentioned in this Agreement.TO HOLD for the Term (determinable as herein provided) paying during the Term first the Principal Rent andsecondly the Maintenance Rent and as a further rent any Value Added Tax (or any tax of a similar nature thatmay be substituted for it or levied in addition to it) payable on the Principal Rent or Maintenance Rent each ofsuch rents to be paid without any deduction in advance on the first day of each calendar month the firstapportioned payment of the Principal Rent and the Maintenance Rent for the period commencing on the RentStart Date and expiring on the last day of the first whole calendar month beginning after the Rent Start Date tobe payable on the Rent Start Date2. THE Tenant agrees as follows:-i. On the signing of this Agreement to pay the Performance Deposit as set out above to theLandlord as security of the Performance of the Tenant’s covenants. The Performance Depositshall be returned to the Tenant on the expiry of the term provided that the Tenant has compliedwith the Tenant’s covenants in fullii. To pay the reserved rents as set out above without deduction or set off and to authorise theLandlord directly to debit the Tenant’s bank account from time to time with the said reservedrents as they fall due and (without prejudice to any other remedy of the Landlord) where any suchrents shall be due but unpaid to pay to the Landlord on demand interest at 4% above the baselending rate from time to time of Barclays Bank plc on the outstanding amount from the due dateuntil payment.iii. To pay all rates taxes and outgoings of an annual or recurring nature charged or imposed on theProperty and a fair proportion as certified by the Landlord’s surveyor of such rates taxes oroutgoings (if any) charged or imposed on any of the parts of the Estate specified in paragraph 4of Part II of the Schedule heretoiv. To pay to the Landlord within 7 days of demand the whole or (as the case may be) a fairproportion of any excess in respect of any insurance claim made by the Landlord under anyinsurance policy covering the Property and/or the Estatev. a. To comply with all statutory requirements (including all regulations orders and byelawsmade under or pursuant to them) and with all codes of practice and British or EuropeanStandards issued by the Health and Safety Executive the Health and Safety Commissionthe Environment Agency or any other relevant regulatory authority affecting the Propertyor the Tenant’s user of itb. To exercise the utmost care and conform to best practice in the handling and storage ofsource materials, finished goods and waste including proper containment and provisionfor spillage to prevent any ingress to the ground surface or foul drainage systems orwatercourses whether inside or outside the Estatec. To provide to the Landlord on request all such information as to the Tenant’s use andoccupation of the Property as the Landlord may reasonably require3vi. a. To place and keep the interior of the Property (including the doors and windows thereofwhether internal or external and the frames thereof and the glass therein the interiorfinishes of the walls and ceilings the floor slab and any drains within the building on theProperty) and the Landlord’s fixtures and fittings therein in good repair and properlydecorated and maintained (except exterior decoration of doors and windows and frames)and to keep the Property clean and tidy and to redecorate the interior of the Property inthe last three months of the Term to the Landlord's satisfactionb. Where there is a compound at or exclusively serving the Property to clear and clean itregularly to the Landlord's satisfactionc. Where the Tenant is in default under sub-clauses 2vi.a and b the Landlord may enter theProperty and make good the default in repair or decoration and the expense of so doingshall be borne by the Tenant and paid to the Landlord on demandvii. Promptly to make good to the satisfaction of the Landlord any wilful or accidental damage to theProperty or the Estate caused by the Tenant or the Tenant’s servants agents or licensees and toindemnify the Landlord against any claims proceedings or demands and the costs and expensesincurred thereby which may be brought against the Landlord by any servants work people agentsor visitors of the Tenant in respect of any accident loss or damage whatsoever to person orproperty howsoever caused or occurring in or upon the Propertyviii. To allow the Landlord or any duly authorised persons to enter the Property to inspect it at anytime during normal business hoursix. To permit the Landlord to affix upon any suitable part of the Property a notice relating to itsreletting in the last three months of the Term (unless the Landlord and the Tenant have agreed arenewal) or immediately if the Tenant serves notice under clause 4 and the Tenant will notremove or obscure the notice and will at reasonable times permit those authorised by theLandlord in connection with any such reletting to enter and view the Property without interruptionx. Not to form any rubbish or scrap heap on the Property or the Estate or to store goods or materials inthe open airxi. Not to obstruct or permit the obstruction of any fire escape routes on the Property or the Estatexii. Not to install any steam or process boiler equipment in the Propertyxiii. Not to make any alterations additions or improvements to the Property except (with theLandlord's prior consent in writing which will not be unreasonably withheld after receiving plansand specifications in triplicate for the proposed works) internal non-structural alterations and theTenant must (unless the Landlord requires otherwise) remove any such alterations at the end ofthe Term and reinstate the Property to its condition prior to the carrying out of the alterationsmaking good any damage caused to the Landlord's satisfactionxiv. Not to remove any of the Landlord’s fixtures and fittingsxv. Not to permit any substance to which the Landlord objects to enter the drains of the Estatexvi. Not to display any notice or advertisement on the Property except a sign previously approved bythe Landlord bearing the Tenant’s name and to remove any such sign at the end of the Term(however determined) making good any damage caused to the Landlord's satisfactionxvii. Not to use the Property except as a factory workshop or warehouse operated in such a manneras to prevent what is in the opinion of the Landlord any nuisance or annoyance to it or its othertenants or the neighbourhood and where there is a Specified Use entered in the Particulars ofTenancy not without the previous consent in writing of the Landlord (such consent not to beunreasonably withheld) and where appropriate of any superior Landlord to use the Propertyexcept for the Specified Use and not to reside or sleep or permit anyone else to reside or sleep inthe Property and not to keep animals on the Propertyxiiii. Not to park vehicles on the Estate except in car parks as directed by the Landlord and not toobstruct any Estate roads service areas or car parksxix. Not to do anything in the Property which would invalidate any insurance by the Landlordxx. To comply with all regulations and directions as the Landlord may from time to time make or givefor the orderly convenient and proper management of the Estate of which the Tenant hasreceived notice in writing4xxi. To yield up the Property at the expiration or sooner determination of the Term in a condition thatis in accordance with the Tenant's covenants contained in this Agreementxxii. Not to charge assign underlet or part with or share possession or occupation of the Property orany part thereof [but the Tenant shall be entitled to share occupation of the Property with acompany that is a member of the same group of companies as the Tenant (as defined in section42 of the Landlord and Tenant Act 1954 (as amended)) provided that no relationship of landlordand tenant is created and such company vacates immediately upon ceasing to be a member ofthe same group]xxiii. To notify the Landlord immediately if the Tenant changes its name and to provide the Landlordwith a copy of the Certificate of Incorporation on Change of Name or such other documentaryevidence as the Landlord shall reasonably requirexxiv. To pay and indemnify the Landlord against Value Added Tax (or any tax of a similar nature thatmay be substituted for it or levied in addition to it) chargeable in respect of any rents or otherpayments made paid or payable by the Tenant under any of the terms or in connection with thisAgreement or in respect of any payment made by the Landlord where the Tenant agrees in thisAgreement to reimburse the Landlord for such paymentxxv. If the Landlord suffers any loss of rating relief that may be applicable to empty premises after theend of the Term because the relief has been allowed to the Tenant in respect of any periodbefore the end of the Term then the Tenant covenants to make good such loss to the Landlord3. THE Landlord agrees as follows:-i. if the Tenant duly pays the Principal Rent and the Maintenance Rent and observes the terms ofthis Agreement the Tenant may enjoy the Property while this Agreement continues withoutinterruption by the Landlordii. to provide the services specified in Part II of the Schedule hereto except where prevented bycircumstances beyond its control4. i. THE Landlord may determine this Agreement on six months’ written notice to the Tenantexpiring at any timeii. THE Tenant may determine this Agreement on the 18th month anniversary of the Term StartDate providing 6 months prior written notice is served to the Landlordiii. Any notice served under the provisions of this Clause shall be in writing and irrevocableiv. The Tenant fully vacating the Property on or before the Termination Datev. Upon the Termination Date if notice has been duly served as stated above and the Tenant haspaid all rents and other sums due and has complied with all the Tenant’s Covenants and otherobligations under this Agreement this Agreement shall cease and determine without prejudice tothe rights of either party against the other for any antecedent breach of covenant5. i. If the said reserved rents or any part thereof shall be in arrears for 14 days (whether or not legallydemanded) or if there shall be any breach of any of the agreements by the Tenant in Clause 2 orif the Tenant (being an individual) shall become bankrupt or have a Bankruptcy Petitionpresented in respect of him or shall be unable to pay his debts within the meaning of theInsolvency Act 1986 or shall have a Bankruptcy Order made in respect of him; or if the Tenant(being a company) shall have an administrative receiver or administrator appointed in respect ofany property of the Tenant or shall pass an effective resolution for winding up or shall have awinding up petition presented or a winding up order or an administration order under theInsolvency Act 1986 made against it or the Tenant shall make or propose any arrangement forthe benefit of creditors whether pursuant to the Insolvency Act 1986 or otherwise or make orpropose any other arrangement with creditors by composition or otherwise or shall suffer anydistress or execution to be levied on its goods at the Property the Landlord or any duly authorisedpersons on its behalf may at any time thereafter re-enter the Property (or any part in the name ofthe whole) and this tenancy shall thereupon determineii. The Tenant irrevocably appoints the Landlord to be his agent to store or dispose of any effectsleft by the Tenant on the Property for more than seven days after the termination of thisAgreement (however determined) on any terms that the Landlord thinks fit and without theLandlord being liable to the Tenant save to account for net proceeds of sale less the cost ofstorage (if any) and any other expenses reasonably incurred by the Landlord and hereby agreesto indemnify the Landlord against any liability incurred by the Landlord to any third party whoseproperty shall have been sold by the Landlord in the mistaken belief held in good faith (whichshall be presumed unless the contrary be proved) that such property belonged to the Tenant5iii. Nothing in this Agreement shall imply or warrant that the Property may be used for any purposewhatsoever under planning legislation now or from time to time in force or that the Property is orwill remain otherwise fit for any such useiv. In this Agreement:-a. “The Landlord” has the meaning set out in the Particulars of Tenancy and includes thereversioner and others for the time being entitled to the rents payable hereunder and whereany person ceases to be the Landlord that person shall cease to have any further liability tothe Tenant under the agreements on the part of the Landlord contained hereinb. “The Tenant” has the meaning set out in the Particulars of Tenancy and includes thosederiving title under the Tenant and where the Tenant is more than one person agreementson their behalf are deemed to be joint and severalc. “The Property” “the Estate” ”the Master Plan” “the Term” "the Term Start Date" “the PrincipalRent” "the Rent Start Date" “the Maintenance Rent” “the Basic Rate” “the Base Figure” “theRent Cesser Period” and “the Specified Use” have the respective meanings set out in theParticulars of Tenancyd. “The Reserved Parts” means any part or parts of the Property hatched black on the MasterPlanv. Subject to the Landlord and Tenant Act 1954 s. 38 (2) the Tenant shall not be entitled to anycompensation under the said Act (or any amendment or re-enactment thereof) on quitting thePropertyvi. If the Property shall be destroyed or rendered unfit for occupation or use by damage covered bythe insurance effected by the Landlord a just proportion (to be finally determined by the Landlord)of the Principal Rent and the Maintenance Rent shall cease until the Property has been made fitfor occupation and use or until the expiry of the Rent Cesser Period which ever first occursvii. The Landlord will use its best endeavours to keep confidential any confidential informationprovided in the course of this Agreement subject to its obligations under law including theFreedom of Information Act 2000viii. Any notices to be given hereunder shall be in writing and in the case of the Landlord shall beaddressed to PXP West Midlands Limited Partnership at Centrix House Crow Lane East Newtonle Willows WA12 9UY with a copy sent to the Senior Property Manager PXP West MidlandsLimited Partnership at [email protected]2HA or at such other address or addresses as the Landlord may notify to the Tenant in writingand in the case of the Tenant may be given to the Tenant at its last known registered office or itslast known place of business or left for the Tenant upon the Property6. The Guarantor in consideration of the letting hereinbefore contained being made by the Landlord at itsinstance and request hereby (jointly and severally) agree and guarantee with the Landlord as follows:i. The Tenant will at all times duly pay the rents hereby reserved at the times and in the mannerhereinbefore appointed and observe and perform the agreements and conditions on theTenant’s part herein contained andii. The Guarantor will at all times hereafter pay and make good to the Landlord all losses costsdamages and expenses which the Landlord may suffer by reason of the non payment of the saidrents or any part thereof at the times and in the manner aforesaid or by reason of the nonobservance or non performance of the said agreements or conditions PROVIDED ALWAYS that:a. any neglect or forbearance on the part of the Landlord in enforcing payment of the saidrents or any part thereof at the times or in the manner aforesaid or in enforcing theobservance and performance of any of the said agreements or conditions shall in no wayrelieve the Guarantor from its liability under the agreement or guarantee on its parthereinbefore containedb. where there are two or more persons included in the expression “the Guarantor” anyneglect or forbearance on the part of the Landlord in enforcing this guarantee as againstone Guarantor or any agreement made by the Landlord limiting the liability of oneGuarantor under this agreement shall in no way relieve the other Guarantor from itsliability hereunder7. Exclusion Landlord and Tenant Act 19546i. By this agreement between the Landlord and the Tenant it is hereby agreed and declared thatthe provisions of Sections 24-28 of the Landlord and Tenant Act 1954 ("the Act") are excluded inrelation to this tenancyii. The Landlord has not less than fourteen days before the date of this tenancy agreement servedon the Tenant a Notice in the form or substantially in the form set out in Schedule 1 to theRegulatory Reform (Business Tenancies) (England and Wales) Order 2003 ("the Notice")iii. The Tenant acknowledges that he has read the Notice and accepts the consequences ofentering into an agreement to exclude the provisions of Sections 24-28 of the Act and the Tenanthas signed a simple declaration prior to entering into this Tenancy Agreement to that effect8. Advantage (GP) Limited as general partner of PxP West Midlands Limited Partnership confirms itsconsent on behalf of Advantage West Midlands to the grant of this Agreement pursuant to the powers ofdelegation bestowed on it and granted by a power of attorney in accordance with a Loan Agreementdated 17th April 2007 made between Advantage (GP) Limited (1) Advantage (GP) Limited andAdvantage (Nominee) Limited (2) and Advantage West Midlands (3)7THE SCHEDULEPART IThe Maintenance Rent1. The Tenant shall pay to the Landlord the Maintenance Rent in consideration of the agreement by theLandlord in clause 3(ii) hereof2. The Maintenance Rent for the period from the commencement of the Term to 1st April next followingshall be at the Basic Rate3. Thereafter the Maintenance Rent payable in each month of a Maintenance Rent Year shall be thegreatest of(a) The Basic Rate(b) The Maintenance Rent payable in each month of the previous Maintenance Rent Year and(c) Such an amount as the Landlord shall by written notice to the Tenant certify to equal the BasicRate multiplied by X and divided by the Base Figure where “X” shall be the figure in the Indexpublished for the January prior to commencement of the relevant Maintenance Rent Year andsuch certificate (in the absence of any clerical or arithmetical error) shall be final and binding onthe parties4. In this Schedule “the Index” means the "All Items" index figure of the Index of Retail Prices publishedby the Office for National Statistics on any successor ministry or department or any index stated to be insubstitution therefor and to be related to the original index in a specified manner “the Maintenance RentYear” means the year commencing on 1st April5. If there is any change in the method of compilation of the Index or if it becomes impossible for anyreason to calculate the Maintenance Rent by reference to the Index the Landlord may in its absolutediscretion adopt any other method it considers suitable for the calculation of the Maintenance Rent byreference to increases in inflation and shall give notice to the Tenant of its adoptionPART IIThe Services1. (a) The insurance of the Property(b) Insurance against loss to the Landlord resulting from cesser of rent under Clause 5.vi. hereoflimited in the aggregate amount otherwise due for the Rent Cesser Period in respect of thePrincipal Rent and the Maintenance Rent2. The repairing and rebuilding of the following parts of the Property(1) foundations (excluding the floor slab)(2) roof(3) outside walls(4) all structural parts (excluding the interior finishes of the walls and ceilings)(5) all drains outside the building on the Property(6) the Reserved Parts (if any)3. The decoration of the exterior of the Property including the exterior of the doors and window frames4. The repairing rebuilding cleansing decorating insuring and lighting (where lights exist) of the followingparts of the Estate used in common with the Landlord all authorised persons and other occupiers for thetime being of the Estate or subject to party rights in favour of the owners and other occupiers for thetime being of the Estate or subject to party rights in favour of the owners of land adjoining the Estate viz:(a) walls fences gates sewers drains watercourses conduits channels sanitary apparatus pipes wirescables roads passage-ways footpaths car-parks subways road-signs street-lamps gardensembankments and open spaces(b) any other things on the Estate so used in common or so subject to party rights8BY this Agreement it is agreed between the parties as specified aboveAS WITNESS the hands of the parties on the Agreement DateSigned as a deed byADVANTAGE (GP) LIMITEDActing byDirectorDirector/SecretarySigned as a deed byADVANTAGE (NOMINEE) LIMITEDActing byDirectorDirector/SecretarySigned as a deed byKERRY EDWARDS LIMITED (Tenant)Acting byDirectorDirector/SecretaryIn the presence of:-WitnessAddressOccupationSigned as a deed byXXXXX XXXXX (Guarantor)Signed as a deed byIn the presence of:-WitnessAddressOccupationAPR 12
There is a lot of detail there. I will need to set aside some time later today to deal with this but will get back to you either this afternoon or in the evening.
The relevant notice clause is set out below:
4. i. THE Landlord may determine this Agreement on six months’ written notice to the Tenant expiring at any time ii. THE Tenant may determine this Agreement on the 18th month anniversary of the Term Start Date providing 6 months prior written notice is served to the Landlord iii. Any notice served under the provisions of this Clause shall be in writing and irrevocable iv. The Tenant fully vacating the Property on or before the Termination Date
I assume that the 28th August was the 18 month anniversary of the commencement of the tenancy.
It does seem that there is a problem with your notice. You have given 6 months notice from 9th September presuming that it was sent by first class post on the 8th However, the date for vacating the premises given in your notice is probably 6 months from the 28th August. This clearly does not follow the clause set out above and is therefore defective notice. The starting point would therefore be that you need to give them fresh notice and they are entitled to 6 moths rent over that period. If you leave they could claim compensation seeking payment of the missing rent.
However, this is not the end of the matter. When did your landlord’s notify you of their displeasure with your notice. Has there been a significant delay? If there has been a delay then it is reasonable for you to argue that they have accepted your earlier notice. Also it is quite clear that you are notifying them of your intention to vacate the premises in 6 months time. At worst they have really only been prejudiced to the extent that your 6 months period should start to run on 9th September as opposed to 28th August.
Even if their position is right, which I don’t think it is, they have a duty to minimise their losses arising out of your departure (what lawyers call the duty to mitigate losses) and should be trying to market the premises for occupation on your leaving date. If they don’t do this it will reduce what they can claim.
It might be that you could agree to remain the tenants until 6 months from their acknowledgement of servicebut make it clear that this is a good will offer without prejudice to your right leave on 28th February or if leaving a little later is not a problem you could make it an open offer. You could refer to the points set out above in your representations. If your landlord continues to take a hard line you may need to consider instructing a solicitor especially if he instructs one to use against you.
In short you are technically in breach but your landlord is over reaching in his reaction and you will probably be able to beat his threatened claim in the way suggested
We emailed them other 5 months asking for a departure date and that everything was ok, and we received letter dated 28th january telling us that we hadnt served the notice correctly.
That I would say is a significant delay. You may want to make representations in the way suggested.