Extension of tenancy - break clause query

[audibility]

Hi there,

I am currently in an assured shorthold tenancy, and I'm wondering whether I can end the tenancy early.

Background:
- My flatmate and his previous flatmate were in this flat first - they were in a joint tenancy. The original contract was for 2 years, with a break clause from 12 months after the start of the tenancy. That date has since passed.
- Before the end of the 2 year contract, the 2nd flatmate decided to move out, and so the tenancy was assigned to me. In addition, the landlord agreed to an extension of the original tenancy for another 12 months.

Therefore, an addendum was added on to the original contract and reads as follows:
We the above named landlord and tenant (myself and my flatmate), hereby agree that the Tenancy Agreement commencement dated, xx/xx/2019 and made between the above parties (my flatmate and the previous flatmate) shall be hereby extended for a further 12 months. From xx/xx/21 to xx/xx/22 subject to the same conditions, stipulations and exceptions as contained in the above commencement dated Tenancy Agreement and any fixed term extensions, subject to the following amendments:
The rent will henceforth be xxx for the annual period. Rent payable in advance... Thereafter monthly on xx date. Last payment being due on the xx.
This memorandum shall have been deemed to have been incorporated into the above dated Tenancy Agreement (the original tenancy contract between my flatmate and the previous flatmate).

If my flatmate and I jointly want to end the contract early, can we do this? The addendum doesn't say anything about a break clause. Given this is an extension of the original tenancy, and the original tenancy contract says the break clause came into play 12 months after the original tenancy commencement date, can I take that date to have passed, and does that mean we can end the tenancy at any time?

[atticus]

can you please quote the exact wording of the break clause. This is important if you seek opinions on whether you may invoke it.

[audibility]

Hi atticus of course. The break clause reads as follows:

The Landlord agrees that the Tenant has the right to terminate the Tenancy on or after the first 12 months by giving the landlord not less than two months prior notice in writing to be served by first class post or hand delivery to the address specified. When the notice period expires the Tenancy Agreement shall cease.

[atticus]

On that wording, my view is that you may exercise the break clause. NB give the notice exactly as per that clause - 2 months written notice sent to the specified address by first class post or delivered by hand to that address.

[audibility]

atticus thank you so much, I am so grateful for your time and help.

[R0b]

Unless I have missed something, you can't exercise the break clause because the 12 months has passed. Nothing in the Addendum you've signed as stated indicates that the break clause is extended or restarted. It only applies to the first 12 months of the tenancy but the Addendum does not create a new tenancy, rather an extension as you confirmed.

As far as I can see, you won't be able to rely on that break clause and may have to rely on some other provision to get out early.

[islandgirl]

The original contract was for 2 years, with a break clause from 12 months after the start of the tenancy. That contract was extended with the same terms. I think it would be valid to issue notice? Am interested to see where this one goes!

[atticus]

"the Tenant has the right to terminate the Tenancy on or after the first 12 months"

[R0b]

Thanks I missed those words "on or after" but even still I would approach with caution because the Addendum has the qualification:

... subject to the same conditions, stipulations and exceptions as contained in the above commencement dated Tenancy Agreement and any fixed term extensions

The extension may very well put the tenants back into a fixed term or some kind of initial term where the break clause cannot be exercised until that fixed term has expired, at which point the tenants can then give notice of at least two months to terminate the tenancy. That interpretation would make sense because it is common for a tenancy to run for a fixed period before the tenants are entitled to terminate, and it would be odd for a tenant to be able to terminate for convenience where a fixed period is stipulated. That is not to say it is not the case here since drafting errors or mistakes happen, but it would just be unusual.

Would suggest checking the Tenancy Agreement to make double sure that there's nothing in there which restricts the tenants from exercising the break clause if they enter into an extension or further fixed term.