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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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Ive received a tenancy agreement for a flat I want to let.

Resolved Question:

I've received a tenancy agreement for a flat I want to let. We agreed a 36-month period, but there is no break clause at any point and the landlord has inserted a 10% plus VAT to the end of tenancy get out payment. Is this standard? Am I right in insisting a break clause after 12 or 24 months?
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Hi.

Thank you for your question. My name is ***** ***** I will try to help with this.

Will he not agree that?
Customer: replied 2 years ago.

The letting agent, negotiating for the landlord who is abroad has suggested I not do it. I'm trying to decide whether I should push for it.

Expert:  Jo C. replied 2 years ago.
Thank you.

This really comes down to whether or not there was any automatic right to cancel under the contract. Often these contracts from breeders are without basis as far as the guarantees go and, in fact, this contract does not say that you have an unequivocal right to return a puppy and claim your money back.

However, come what may, they have accepted the puppy back. If they had refused then you may well be in difficulty but that isn't what happened. They cannot keep all of your money and retain the consideration, in this case the poppy, that they provided for the contract.

That said, probably we both know that a puppy is at its optimum value at about eight weeks old. Thereafter the market price of a puppy declines. Therefore the practical reality is that they may be entitled to say that they had to sell him at a discounted price to move on and you are only due refund of that sum.

I'm afraid they are entitled to refuse a refund until resell because they don't know at this stage what price will be fetched and therefore what refund you are due.

In practical terms, we are probably only talking about a couple of hundred pounds and so if you were to issue at this stage it is possible that they will just settle for the full amount but that is the risk that you take.

Can I clarify anything for you?

Jo
Customer: replied 2 years ago.

I don't think this reply was meant for me unless you are making an analogy I don't understand.

Expert:  Jo C. replied 2 years ago.
I'm sorry. That was my dictation software copying the wrong post.

Here is your answer!

Thank you.

The difficulty with this is basically that there is no right answer. It depends what you want to achieve.

The term that the landlord has inserted is completely unenforceable. That doesn't mean that it cannot remain in the contract but just that it will be unenforceable at court. You are signing to a contract that bind you and him for 36 months. If you leave early you will be in breach and, in legal theory, liable for the remaining months due under the contract. However, if you leave early then the landlord is under a duty to mitigate his loss by seeking another tenant and you are only liable for the period of time that it takes him to do that. He cannot just have blanket charges of 10% plus VAT.

In relation to whether you should demand a break clause, it depends whether you want to remain there or you want the flexibility of being able to leave. If you insert a break clause then although you do not have to use it you face the risk that the landlord may and then you would have to leave. You may be willing to bear that risk but obviously if you want to stay for three years then it would be an attractive to give your landlord that option.

Can I clarify anything for you?

Jo
Jo C., Barrister
Category: Law
Satisfied Customers: 69773
Experience: Over 5 years in practice
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