Notice and break clauses

accidental scrooge

Hi,

I have a property rented out to some tenants, and recently had a change of circumstances, which means I'm selling my current home, and want to move back into the house that's rented out.

They have a fixed term lease for one year, that expires in june 2017 (they moved in june of this year). It has a break clause that allows me to give them 35 days notice at any time. Since they've been in there longer than 6 months, I also got the affidavit from a solicitor to cover my bases according to the 2004 act, and gave them about 45 days notice, as of last week.

They called the RTB, who immediately told them I can't terminate the lease at all until next june, plus 42 days. This was without them having seen the lease or the break clause.

Since then, the tenants have come back to essentially say "break clauses are worthless after 6 months", which I think is wrong. I think what they mean is that they want to assert part 4, which says 35 days and an affidavit, which I've already provided. They say they have no intention of leaving.

It seems like they might be clutching at straws, and are talking about solicitors and court and whatnot. Things have gotten pretty heated (they're posting on local busybody facebook pages calling out myself, and my agent by name). That's neither here nor there, I mainly wanted to get opinions on where I stand here. They seem pretty adamant, but neither of us are lawyers.

I'm heading into the solicitor on tuesday to go through the lease with a fine tooth comb and make sure I'm covered, but what recourse do I have in the meantime? I'm going to be homeless myself come february if this doesn't get resolved.

Cuddlesworth

You need to go through a formal eviction process. Could take up to a year.

accidental scrooge

Cuddlesworth wrote: »

You need to go through a formal eviction process. Could take up to a year.

So you're saying that all I have to do as a tenant is kick up a fuss and ignore my lease/make up imaginary rules about tenancies and I get to stick around? At this point if I have to go rent elsewhere, I'll be pursuing them for my own rent as well. All advice I've gotten is that 5 minutes with any solicitor will set them straight, but they seem to be going the armchair lawyer and Facebook route.

Denny_Crane

accidental scrooge wrote: »

So you're saying that all I have to do as a tenant is kick up a fuss and ignore my lease/make up imaginary rules about tenancies and I get to stick around? At this point if I have to go rent elsewhere, I'll be pursuing them for my own rent as well. All advice I've gotten is that 5 minutes with any solicitor will set them straight, but they seem to be going the armchair lawyer and Facebook route.

My own opinions may come through here. They're not favourable to your position so sorry in advance if they do.

Legally - honestly dunno I'd have to do some reading and it's the near solstice holiday stolen by a cult about 2000 years ago that I like to celebrate and I'd probably only breach the forum charter for doing so. Generally you can't contract out of legislation - it's very possible break clauses are indeed worthless, ask the folks in legal discussion in the abstract - or I might it's quite an interesting area - for a full answer.

Practically - you're going to get absolutely nowhere. The best bet is to negotiate with the tenants and try and ask them to leave, probably with some financial incentive to do so. At best you'll end up with a dirty house after thousands in legal fees and months of buggering about.

I know it sucks for you but at the end of the day tenants are entering into leases in good faith and the legal landscape is to give tenant more and more security at the expense of the landlord.

accidental scrooge

Aye, it's looking more like my route is to go find a place to rent, open an RTB case (which I'm pretty sure I'll win), then go after them for my costs and damages. May end up lasting until lease end anyway (which is not getting renewed at this point, any brownie points they had they used up with their facebook stunts).

Yawns

As said above you can't contract out of legal rights. RTB may not side with you at all and they defo will not give your rent as costs against them either.

accidental scrooge

No legal right is being contracted out of. The lease has a break clause which I understand is a pretty normal thing (but not included in many leases, or assumed included in a verbal lease). RTB specifically says this. They also told the tenants on the phone that I couldn't break their lease until the full year, without having seen or asked whether the lease has a break clause.

RTB wouldn't award costs, no - I'd pursue that separately as it's likely to end up being a substantial sum.

Sarn

If it was a case of using the break clause just to get rid of the tenants then you'd be out of luck. However, given that you will need the property for your own use that would be valid grounds to end the Part IV tenancy. Even Threshold acknowledge this.

Mrs OBumble

Even if you are awarded costs - there's no telling that the tenants would actually stump up the cash.

This may be a case where the law is an ass and is of very little assistance to you, even though you are on it's good side.

accidental scrooge

This is what I originally thought. However, a fixed term tenancy isn't subject to section 34 (the "I need the gaff, get out" section) of the act after 6 months of tenancy, so I'm relying on the break clause. According to the tenants (and RTB, according to them) there is literally no way to terminate a lease between 6 months in and the end of a fixed term, unless someone breaches the terms.

The RTB website is a maze of twisty passages, you have to dig around to find straightforward info, and as other posters have said, it has plenty on tenant's rights but not so hot on landlords' rights.

Denny_Crane

accidental scrooge wrote: »

No legal right is being contracted out of. The lease has a break clause which I understand is a pretty normal thing (but not included in many leases, or assumed included in a verbal lease). RTB specifically says this. They also told the tenants on the phone that I couldn't break their lease until the full year, without having seen or asked whether the lease has a break clause.

RTB wouldn't award costs, no - I'd pursue that separately as it's likely to end up being a substantial sum.

Getting costs/damages is one thing - enforcing it is entirely another. By their very definition tenants are very hard to enforce against, they've generally speaking, very little in the way of assets. I do not wish to be insulting for one second but you're coming across as half cocked. You've got a solicitor involved be guided by them.

As for a legal right being contracted out of, a part IV starts after 6 months. You can't - in my view - contract out of that. All this said the break clause is probably a bit of a red-herring as can't you reclaim a property for personal/family use anyway under the RTA? I have to admit to not having been following the legislation closely of late.

All barrack room lawyering aside, people have many, many tales of woe in trying to force anything to do with tenants. Courts/RTB/Society is in an impossible position here trying to vindicate the rights of two sympathetic parties.

I realise it's the holidays and this is obviously weighing on your mind but you're not going to get a better answer than the one from your solicitor. Best of luck with it, I'll leave it there as I'm not sure I'm adding anything at this stage.

accidental scrooge

Cheers for the advice, will leave it to the solicitor, you're dead right (I just realised I've given the same advice to many folks in tricky situations, so I'm going to take yours/my advice).

Have a good 'un.

Pkiernan

accidental scrooge wrote: »

Cheers for the advice, will leave it to the solicitor, you're dead right (I just realised I've given the same advice to many folks in tricky situations, so I'm going to take yours/my advice).

Have a good 'un.

Hope you get on okay. would appreciate it if you update us.

The way I understand it, is that lease or no lease, these tenants will be able to stay until such time as their Part IV tenancy expires (4 years from original move in date). They are not required to leave after the expiration of the lease, unless you (or family member) are moving in.

With the current legislation 12 month leases never benefit landlords.