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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hello Can you let me know what this clause in our assured

Customer Question

Hello
Can you let me know what this clause in our assured short term tenancy agreement means:
At any time this Agreement (or any tenancy continuing by virtue of the provisions of the Housing Act 1988 or any act amending or replacing the same ("the 1988 Act")) may be terminated either by the Tenant by service on the Landlord of not less than one month's notice in writing or by the Landlord's service on the Tenant of written notice of not less duration than as may be the minimum required for the time being in accordance with the 1988 Act PROVIDED THAT such Notice shall not in any event expire before the end of the Term and in the event of the Tenant not vacating on expiry of the Notice then it is HEREBY AGREED that the Tenant shall pay to the Landlord the increased rent as specified in paragraph 10 of the Particulars from the date of expiry of the Notice until such time as the Prmeises are handed back to the landlord.

Thanks very much.
Submitted: 3 years ago.
Category: Property Law
Expert:  Remus2004 replied 3 years ago.
Thank your for your question. My name is Jo and I will try to help with this.

In order to give you an answer tailored to your circumstances, I will just need to ask you some preliminary questions so that I can consider your position from all angles.

How long is the AST for?
Customer: replied 3 years ago.

It is for 12 months

Customer: replied 3 years ago.

FOR JOMO72


 


It is for 12 months

Expert:  Joshua replied 3 years ago.
Thanks for your question. Please kindly RATE my answer when you are satisfied

My colleague has asked me to look at this for you.

Could you kindly advise the date your tenancy started?
Customer: replied 3 years ago.

Hello. It began 1 July 2013.

Customer: replied 3 years ago.

FOR JOMO72


 


It began 1 July 2013

Expert:  Joshua replied 3 years ago.
Thanks. The clause you have kindly posted above provides for the basis on how the tenancy can be brought to an end. In practice it does little or nothing becuase it is overridden by statute but it is normal to incude a clause providing for termination of the tenancy.

The tenancy cannot be ended earlier than your fixed term you have agreed unless you fall behind with the rent in which case the landlord can bring eviction proceedings against you.

Otherwise you can simply leave on or before the last day of your fixed term giving no notice at all (though it is polite to give notice in practice) or after the end of your fixed term giving one months notice to the landlord or the landlord giving two months notice to you which notice must only end the day before rent is payable as provided for by the Housing Act.

Is there anything above I can clarify for you?
Customer: replied 3 years ago.

 


 


FOR JOMO72


 


Thanks very much. Just to clarify, does this mean the onky way to end the tenancy agreement would be with the landlord's agreement and by signing a Deed of Surrender? Basically we cannot give notice until we nesr the end of the 12 month fixed term?

Expert:  Joshua replied 3 years ago.
Not at all. The tenancy can end in any one of the following ways:

1) by your leaving the property on or before the last day of the fixed term without notice (polite to give notice though not a legal requirement)
2) if you stay beyond the end of the fixed term by your giving one clear months notice to the landlord which notice must only come to an end the day before rent is payable.
3) During the fixed term by asking the landlord to remarket the property and seeking an alternative tenant. Your tenancy would end as soon as a new tenant is installed.

4) By the landlord giving you at least 2 months notice to leave at the end of the fixed term.
5) By the landlord giving you at least 2 months notice after the end of your fixed term which notice must only come to an end the day before rent is payable.
6) At any time by mutual agreement between you and the landlord.

Does the above answer all your questions or is there anything I can clarify or help you with any further?
Customer: replied 3 years ago.

FOR JOMO72


 


Hello again and thanks for getting back to me.


 


I am still slightly confused as I do not fully understand the terminology of the clause. I had understood that if we give notice to the landlord we would not be able to get out of the AST Tenancy Agreement - i.e. we are not in a position to give notice if the notice expires during the fixed term of 12 months.


For example, if we give the landlord 30 days notice from today, 1 August, this notice would expire at the end of the month, which is still within our 12 month fixed term of the AST agreement. Is this possible? Or are we legally required to pay rent and other costs as agreed in the tenancy agreement?


Thanks and I do apologise that I am not understanding!


Kind regards


Jen

Expert:  Joshua replied 3 years ago.
No problem. It may be more helpful rather than me telling you all the scenarios you can extract yourself out of the tenancy as above if you could briefly outline what you are hoping to achieve? That way I can specifically address your position.
Customer: replied 3 years ago.

FOR JOMO72


 


Basically my husband and I signed a 12 month AST tenancy agreement which began on 1 July 2013 and the fixed term is at the end of June 2014.


 


We have recently discovered our daughter has a serious vision issue and for these reasons are leaving the area to be closer to better medical care.


 


Ideally we would give the landlord notice and pay rent to the end of that period. However, I am unclear as to whether we are actually able to do that given the working of the clause:


 


At any time this Agreement (or any tenancy continuing by virtue of the provisions of the Housing Act 1988 or any act amending or replacing the same ("the 1988 Act")) may be terminated either by the Tenant by service on the Landlord of not less than one month's notice in writing or by the Landlord's service on the Tenant of written notice of not less duration than as may be the minimum required for the time being in accordance with the 1988 Act PROVIDED THAT such Notice shall not in any event expire before the end of the Term and in the event of the Tenant not vacating on expiry of the Notice then it is HEREBY AGREED that the Tenant shall pay to the Landlord the increased rent as specified in paragraph 10 of the Particulars from the date of expiry of the Notice until such time as the Premises are handed back to the landlord.


 


We don't want to be responsible for rent, etc. after leaving the property, so if it is not possible for us to give notice, we would then I think be seeking to come to a mutual surrender agreement with the landlord.


 


I hope this helps. Let me know if I can give you any further information.


 


 

Expert:  Joshua replied 3 years ago.
Thanks. There is a common right to bring the agreement to an end before the end of the fixed term by exercising common law rights as follows:

The starting point is that as you have signed a fixed tenancy subject as follows you cannot unilaterally leave during that period as you have no contractual right to do so other than by virtue of the break clause that alows you to end the tenancy early - the above is not a break clause. However it is possible to escape early from the tenancy by asking the landlord to remarket the same. The landlord has a common law duty to mitigate his losses and as such must do his best to remarket the property. You would be liable for reasonable marketing costs notwithstanding the above associated with this together with any reasonable agency fees. The landlord cannot charge for his time as such unless he is acting as a professinoal agent. Your liability would end on the earlier of the end of your existing term or a new tenant being sourced to replace you - if that tenant pays a lesser rent than you you may be liable to pay the difference between the two but the landlord must do his best to replace you on the same terms including rent.

If he does not want to find a new tenant or is slow to do so or offers different terms - e.g. higher rent, he will be limited to demanding rent from you for no more than a period that would be reasonable to expect him to take to find a new tenant. Alternatively you could agree a fixed compensation proposal. The landlord cannot refuse to do anything at all or he will find that he is limited in the amount of continuing rent he can attempt to recover as above. Equally there is nothing stopping you advertising for a new tenant to replace you yourself. The landlord is bound to accept a new tenant unless he can show they are unsuitable - e.g. cannot afford the rent

 

 

4-8 weeks is normally sufficient time to find a new tenant in a buoyant rental market as we are presently experiencing and the landlord would likely be limited to roughly this period give or take in terms of rent he can demand if you wish to leave early.

 

Does the above answer all your questions or is there anything I can clarify or help with any further?

 

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