Asymmetric Break Clause In An Ast

[RentingForever]

I'm in the process of moving between rented places and have almost sorted everything out when this weekend my new landlord's letting agency hit me with the news that the contract, an otherwise standard 12 month AST, won't include a 6 month break clause for me but there is one for the landlord. And, worse, the landlord will have the right to give me a month's notice to quit after the 6 month point. The agent said that this was to protect the landlord if I was a nightmare tenant who didn't pay rent and in case his circumstances change (same applies for me, surely?) - but they would only activate the clause at the 6 month point and not in the remaining 6 months. ("I know it reads like that but we'd never do it").

I'm too far down the road of arranging the move now not to sign, but I've never seen this kind of thing before and would welcome others' opinions on it. Is asymmetry like this enforcable? legal?

[Flopsy]

It sounds like the AST I was offered when I saw a flat through the awful Foxton's in London. Plus one other agent in London (York Estates).

My advice would be simply not to believe anything a Letting Agent says to as in my experience they lie. As am example for one flat I was told a similar story just to discover that the LL intended to sell the property and promptly put it on the market as soon as my 6 months was up. I felt trapped and in a battle over access.

As I pointed out to the LA Manager as Foxton's it was illegal for the LL to evict me with only 1 months notice so what was the point of having an illegal clause in a contract. This resulted in that person having a screaming fit in the office and the other agents having to calm them down as there were other "clients" in the room at the time.

My experience is also that LA's wait until the last minute before springing that type of contract on you. They figure that it is too late for you to pull out.

My advice would be to either pull out of the deal, even if that means putting your stuff in storage or simply change the part of the contract that you don't like, sign it and send it back to them. When I was dealing with Foxton's (spit) they gave in (after the screaming and yelling fit) pretty quickly. They were "trying it on".

I also included a covering letter (and all my registered mail) to say that I would consider the contract signed and agreed as per my changes if I had not hear from them within 72 hours.

Good luck. Hope it ends well for you. Always a battle moving from one flat to another.

Edited August 17, 2015 by Flopsy

[nickincash]

A break clause which is more favourable to the landlord than to the tenant is not a fair contract term and is not enforceable.

[RentingForever]

Thanks both, The LA seems otherwise well-established in the area and "respectable", certainly not a Foxtons-type - no reports of bad behaviour on review sites or from people I know in the area. I suspect they rarely use the clause and don't realise it's problematic. It really is too late for me to pull out now so I'll sign up and see what happens at the 6-month point (the local housing office is quite proactive when it comes to dodgy landlords/agents).

Nickincash - have you got a reference that backs up what you say that I could use if necessary?

[nickincash]

This may help:

http://www.letlink.co.uk/index.php?option=com_content&view=article&id=486%3Aunfair-contract-terms-regulations-how-do-they-apply-to-tenancy-agreements&catid=125%3Aunfair-terms&Itemid=100078

See this bit . . .

A term authorising the supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer.13
Example: A term permitting the landlord to break or end a fixed term agreement, where such a right is not given to the tenant. Such a term may not be enforceable.

[This time]

We had an asymmetric break clause on our flat (we're now well into rolling contract) but it said that we could give notice after six months but the landlord couldn't for a year which was very good of them. I would not be happy at all with the other way around and I'm glad it seems uninforcable. So really all it's done is start the tenancy on a sour note - really bad business.

[RentingForever]

Well let's see if the LA tries it on at six months. The fact I've signed the contract doesn't make it enforcable. I see the Shelter website also mentions it as an unfair clause.

The irony is that I originally asked for a six-month break clause for both sides - and they refused!

[wherebee]

Well let's see if the LA tries it on at six months. The fact I've signed the contract doesn't make it enforcable. I see the Shelter website also mentions it as an unfair clause.

The irony is that I originally asked for a six-month break clause for both sides - and they refused!

I would note in writing NOW that you believe that term to be unenforceable, but signed it due to pressure from the agent and the lack of time given due to the late stage of submission by the agents employees.

That way if it goes south, a court can see you signed an unfair contract under duress.....

[RentingForever]

Thanks. I've got a long email trail on the subject that makes it clear I don't like the clause to pull out of the bag if needed.

[Damocles]

I agree that an asymetric break clause which favours the landlord (but not one which favours the tenant) is probably going to be an unfair term. See term (f) in Schedule 1 to the UTCCR.

If specifically negotiated (which the landlord needs to show) it will not be an unfair term. A contra-indication that a term was specifcally negotiated is if it is in the landlord or agent's standard agreement.

Apart from the above, and as suggested, important non-standard terms should not be sprung on the tenant at the last moment.