Here is a question to the Blog Clinic from Ashley who is a tenant (question answered by David Smith)
We have break clause in our AST contract, which states the following:
“The landlord and tenant have agreed that two months written notice can be given from month 6 onwards for the tenants to vacate the property, this notice must be given by the rent due date (17th of the month). The property will be re-marketed within this time. The tenants are aware that they will be held liable for any void period at the property after the two months has ceased, up until the last day of the tenancy.”
We have served our 2 months notice and moved out of the property on 17th July.
During the notice period our landlord put the property up for sale and there was no evidence of it being marketed for rent.
The landlord is now saying that she has found a tenant to move in we are liable for rent payment to over the void period 3 weeks) and is refusing to return a proportion of our deposit (protected by the DPS).
Could this break clause be deemed “unfair” as it could potentially be exploited by the landlord as they could continue to say that “they have not found suitable tenants” leaving the tenant liable for rent until the end of the contract.
This is not a break clause really but actually a poorly worded expression of what a lot of people think the law actually is.
That is the obligation on the landlord to mitigate the loss of the tenant wanting to leave during the fixed term.
I don’t think it would be unfair really as it does not create and unbalanced position. In fact, it gives the tenant more rights as against the usual position which is that the landlord is under no obligation whatsoever to relet the property.
Two comments
First when did the 6 months date pass after which notice could be given by a 17th monthly.
Second my understanding is that if the property is put up for sale as opposed to let then that gets the ex tenant off any hooks because of the inevitably longer delay in securing and completing a sale. So the LL cannot hold the tenant liable.
This may be an old wives tale and red herring but given that it could take 6 months seems reasonable that the LL cannot hold the tenant liable for ever – if indeed they have any liability at all if they gave correct notice.
From the wording I think we’re safe to assume this contract is still within the fixed term so the landlord couldn’t hold them forever, just until the contract expires.
From what they have said it is fairly clear what the clause is trying to say and that the tenant is fully aware of their liability. They’re just trying to wriggle out of it.
The tenant is still benefiting from the clause and is only having to pay for three weeks void period instead of the full fixed term as they would have if the clause was not present, so it can hardly be considered an unfair term.
I’m sure they’ll dispute it with the DPS anyway instead of just accepting their liability.