Break clauses in tenancies: Your rights and the rules

Break clauses in tenancies: Your rights and the rules
When is a fixed term tenancy not a fixed term tenancy?

Well, technically never.

But with a break clause in your tenancy agreement, it is possible for either tenants or landlords to sever ties early.


Renting break clause: A tenant's rights

Ultimately, a tenancy break clause is about flexibility.

If your circumstances change, for instance you have to move for work or you lose your job and can no longer afford to rent the property you're in, having a break clause inserted in your tenancy agreement can make a huge difference.

Landlords, too, can be victims of circumstantial change and a break clause can provide them with added flexibility to terminate a tenancy early.

When requesting a break clause be inserted into your tenancy agreement, you should be aware that there will almost certainly be restrictions.

One is likely to be that the clause cannot be implemented before six months of the tenancy has passed, while landlords can stipulate other terms if a tenant wishes to insert a break clause.

Put simply, as a tenant you are responsible for paying rent during the period of your fixed term tenancy - that's why tenancy agreements are put in place in the first place.

And one stipulation of a break clause is likely to be that you are fully paid up and there are no rent arrears before you can implement any break clause.

Another is likely to be that the tenant supplies 'vacant possession'. This means all your belongings must be removed when departing. Landlords will also usually stipulate that the property is returned in the same condition it was in at the start of the tenancy, less any acceptable wear and tear.


Serving notice as a tenant

Your tenancy agreement, if it has a break clause, should clearly state the notice period required in order to implement the break.

For tenants this is usually two months, but can vary.

Notice will almost always be required in writing, so check with the landlord or managing agent whether an email will suffice before firing one off.

If email correspondence is acceptable, request a reply to confirm it's been received.


If you haven't got a break clause

This doesn't always have to be an issue for tenants wanting added flexibility.

As a break clause can rarely be implemented before six months of the tenancy has expired, a simple way to ensure flexibility is to only sign a six-month tenancy.

That way, you can end the tenancy at the end of that six-month fixed term if you wish, giving the required notice, or you could enter a periodic tenancy which rolls over from month to month.

Alternatively, you could sign a new six-month agreement if both you and your landlord are happy to do so.

If you have signed a longer agreement at the start of the tenancy, say 12 months or two years, it is still possible to terminate the agreement early.

However, your landlord would need to agree to it.

It's also likely the landlord would insist that you remain and continue to pay rent until new tenants have been found.

If your circumstances are more desperate then you can negotiate.

You can also assist your landlord or their managing agent in finding new tenants by keeping the property looking great and being flexible with access for viewings.

You could even recommend a tenant to your landlord if you have someone in mind!

'Surrendering the tenancy', as its commonly referred to, can be difficult, but most landlords will be open to negotiating an early termination - particularly if your reasons for doing so is due to a major chance in circumstances like a relationship breakdown or illness.


Landlords and break clauses

In the same way you would be required to give notice and meet conditions in order to implement a break clause, your landlord must do the same if they wish to end your tenancy early.

And if no break clause exists, your landlord can only terminate your tenancy if you have broken the terms of the tenancy agreement.

But the landlord must issue a section 8 eviction notice stating on what grounds they are wanting to gain early possession of the property.

If you have not broken the terms of the tenancy agreement and your tenancy's fixed term has not ended, the landlord can only terminate the tenancy if you agree.


Leaving without informing the landlord

This is known as an 'abandonment' and is not advised.

While there is nothing to stop you physically moving out of a rental property early, you would still be liable for any rent payable up until the end of the fixed term.

Even if your landlord subsequently finds new tenants, you would still be liable for the rent up until that time and your landlord can use the courts to claim what is owed.

If you have any questions regarding your tenancy agreement, get in touch with your loal CJ Hole office.