This is a question to the blog clinic from Andreas who is a tenant.
I need to know if I can break my AST agreement. The initial term of the tenancy agreement is 12 months and now it’s the 7th month. One of the points states:
“If the Tenants shall desire to determine the tenancy hereby created at or at any time after the end of the break clause they shall give the Landlord not less than two months prior notice in writing of such desire and shall up to the time of such determination pay the rent and observe and perform the agreements and obligations on the tenants part.”
The problem is that the agency has not included a break clause in section 8 but as far as I know it’s compulsory to have one no matter what is the period of it.
That is a rather bizarre clause. Apart from the words “after the end of the break clause” the clause reads as if it IS a break clause.
You don’t say whether it was agreed that a break clause would be included at the time you signed the tenancy. However it does look as if it was intended to have a break clause but that there was an error in the drafting.
It is arguable therefore that this is something which could and should be rectified.
Rectification of clauses in contracts
This is a doctrine which allows parties to change a contract where an error has crept in by mistake. It is also possible for a Court to order rectification – although as this is an equitable remedy it will only be awarded where the court considers it appropriate.
A recent case (not a housing case though) where rectification was ordered is Borough of Milton Keynes -v- Viridor (Community Recycling MK) Limited (No 2)  (discussed here).
So you could just give notice as if this were a normal break clause and if the agents object and threaten to sue for the rest of the rent, say that so far as you are concerned it is a break clause and that if they sue you will be asking the court to rectify the clause. I suspect that they would not want to risk this happening so would not sue.
Compulsory break clauses?
However I am afraid that it is not compulsory to include a break clause in a tenancy agreement. This is up to the parties.
If there is another person willing to take over the tenancy though, there is a question mark over the enforceability of any prohibition on assignment if no break clause is included.
This was put forward by the old Office of Fair Trading Guidance on Unfair Terms in Tenancy Agreements from 2005, although this document is no longer supported by the CMA which has taken over the OFT’s functions.