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It’s Not You It’s Me: Validly Serving a Break Notice

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In the current political climate, many tenants are revisiting their leases and trying to see whether they are able to exit a property in light of the uncertainty. The most common form of this is by exercising a break notice. Here we look at the factors that should be considered when serving a break notice to ensure it is valid.

Has the notice been served on the correct party?

The lease will specify whether the notice is to be served on the Landlord, its agent or another third party along with the address. If the lease specifies the lease is to be sent to a third party and the notice is still sent to and received by the Landlord it will still be held to be invalid. Don’t just assume that the landlord will want to receive the notice always double check your lease.  It is also best practice to follow up a few days after the notice has been sent to make sure that the notice has been received, allow yourself a few extra days to ensure that if the notice hasn’t been received you are able to resend the same whilst still giving the correct amount of notice.

Has the correct method of service been used?

The lease will specify if the notice needs to be given in writing and whether writing includes fax or email.  Again, if the incorrect method of service if used the notice will be held to be invalid.

Has sufficient notice been given?

Under the lease you will usually be required to give a certain amount of time notice in order to implement the break notice. The amount of notice varies so again we would advise to check the terms of your lease. Sometimes the lease will state that date by which the notice period must be given (i.e six months’ notice expiring not later than 1 October 2019) therefore in order to give sufficient notice the notice would need to be served no later than 1 April 2019 (not taking into consideration any service rules).

Has too much notice been given?

Sometimes leases will provide a window during which notice can be served therefore whilst being proactive is good, unfortunately, if your lease contains this window period and you serve notice prior to this then the notice will not be held to be valid.

Have any break conditions been complied with?

Most leases usually contain conditions which need to be complied with in order for the notice to be held to be effective.  These conditions usually include, that any payment due under the lease including rent, service charge insurance premium etc are all fully paid either on the date the notice is served or up until the date of the break.  Other conditions include ensuring that there is no breach of any covenants under the lease and that vacant possession of the whole of the Property is given. If any of these conditions are not complied with then the break notice will be held to be invalid.

Given the number of hurdles there are to overcome when serving a break notice it is advisable to seek legal representation to ensure any notice is correctly served or the alternative is that you could be tied in to your lease for the remainder of the term.