Tuesday, 22 March 2011

Break Notices – If You Get It Wrong You’ll Get It Right Next Time

Here’s another foray into the crystal maze that is the crazy world of the lease break clause.

If you are a tenant and your lease gives you the right to terminate your lease, it should be quite straightforward. You serve the notice and then leave.

“Simples” as a certain variety of irritating TV mongoose might have it.

But, as my previous posts on break clauses have demonstrated, it’s not always that easy and getting it wrong can be a very costly mistake.

Lease Break Clauses – What Can Possibly Go Wrong? explains many of the common pitfalls.

Breaking news – Don’t Get Caught In The Landlord’s Web describes a recent break notice mix-up that ended up in court because a landlord’s agent intervened.

Or you might change your mind and wish you’d never served darn break notice in the first place and want to turn back time – see Lease Break Clauses – What If You Change Your Mind?

Here’s another possible scenario I haven’t already covered.

What if you serve a break notice, then realise you might have got it wrong?

You are still within the time limit for serving the break notice.

Can you have another go and serve another one?

If you do, what if the original break notice was actually right in the first place?

This might appear to be the nightmare of a paranoid lunatic, but it’s actually quite a common situation and there’s usually a way of dealing with it.

If you, or your advisor, have doubts about the validity of the first notice, then you can serve a second notice and mark it “without prejudice to the validity of the first notice”.

By using these words you are making clear that you are relying on the first notice but, if that notice is found to be invalid, you will rely on the second notice.

You must make clear what notices you are relying on and in what priority. To avoid invalidating the notice, this should be dealt with in a covering letter accompanying the notice, rather than in the notice itself.

As I have said on many occasions before, given the importance of break notices, you should always take professional advice when you decide you want to terminate your lease and you should ask your advisor to prepare and serve the notice on your behalf.

And if at first you don’t succeed, provided you’re still within the notice period, as the late Gerry Rafferty once sang – if you get it wrong, you’ll get it right next time (next time).

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