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Thomas
Thomas, Lawyer
Category: UK Property Law
Satisfied Customers: 6445
Experience:  BA (Hons), PgDip, Practising Solicitor
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Hi, I have a property that I rent out via a letting agent.

Resolved Question:

Hi,

I have a property that I rent out via a letting agent. Due to a change in circumstances I have decided to sell the property. I recently asked the letting agent how I would do this and serve two months notice on the tenants.

His response was as follows:-

"Hi Ashley

I have just checked the tenancy agreement for you.

You are unable to give the tenants notice as the ASDT is for a fixed 12 month notice period ending 3rd February 2013.

It is probably a better time to sell then rather than late in November / December when the market is quiet.

Any queries please contact me.

thanks"

I was under the impression that I could serve notice after 6months had elapsed and I needed to give 2 months notice.

Any advice would be greatly appreciated.
Submitted: 2 years ago.
Category: UK Property Law
Expert:  Thomas replied 2 years ago.
Hi,

Did the agents prepare the AST for you?

Did you instruct them that you wished to have the ability to terminate after 6 months of the term had elapsed?

Tom
Customer: replied 2 years ago.

Hi Tom,


 


Yes, the AST was prepared by the letting Agent.


On the documents that I have from the letting agent it states "12month / 6 Break / 2 Notice".


 


I took this to mean that after 6months I could serve notice. The letting agent has been looking after this flat for me since 2006 and I am sure this has always been the agreement.


 


Kind Regards,


 


Ashley

Expert:  Thomas replied 2 years ago.
Ashley,

Thanks.

Are you paraphrasing the agent when you say "12 month / 6 break / 2 notice "? Or is that actually what it says on your correspondence from them?

Tom
Customer: replied 2 years ago.

Hi Tom,


 


I actually have that on the documentation that I recieved when the new tenants moved in Feb 2012.


 


Thanks,


 


Ashley

Expert:  Thomas replied 2 years ago.
Ok.

Did you sign the agreement or do you have an arrangement with the agents whereby they execute on your behalf?

Tom
Customer: replied 2 years ago.

Quite sure that I signed a copy, but would have to check. However, when I was living abroad the agent would act on my behalf.

Expert:  Thomas replied 2 years ago.
Hi

Thanks for your patience.

If the term of the tenancy agreement is for 12 months then you can only terminate earlier than this time if there is a break clause entitling you to do so. The earliest that this break clause can be operated is after 6 months.

I presume the agent has checked the tenancy agreement and there is no break clause. Therefore the earliest that you could get possession if the tenant remains in compliance with the terms of the tenancy agreement is once the fixed term has expired. IN order to do this you would have to serve a s21 Notice giving two months notice with such notice to expire at the end of the fixed term:-
http://www.landlordzone.co.uk/section-21-notices.htm

The question is therefore whether the agent has not acted according to your instruction and/or been negligent. The details that you have provided in quotes are not conclusive but do suggest that there was intended to be a break clause at 6 months (ie. 6 Break). If it was the case that this was what you instructed them to do and they did not do this then you may have a claim against them for breach of contract, however if you were given an opportunity to read the tenancy agreement before you signed it then they could potentially use this as a defence.

I personally would leverage the apparent ambiguity of whether they acted in accordance with yoru instructions against them to reduce their fees and/or perhaps offer a partial refund. It does not change the fact that the tenant has a right to remain there until the fixed term has expired thogh


Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

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If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Thomas, Lawyer
Category: UK Property Law
Satisfied Customers: 6445
Experience: BA (Hons), PgDip, Practising Solicitor
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