Advice on lease conflict

I signed a contract with my landlord in Dec 2006 with lease starting on Jan 7th, 2007. Now my landlord is asking a rent increase of 30%, which I do not think she has the right to do so. When I signed the contract, I have asked to have the option to terminate the contract but the landlord does not have the option. My understanding is that as long as I do not terminate, I pay the current rate. In the provisional contract, there is such a clause


Notwithstanding anything to the contrary herein contained, the Tenant (the Landlord and Either Party are crossed off) may terminate this tenancy by serving not less than 2 months’ notice in writing to the Landlord (the Landlord and Either Party are crossed off) PROVIDED THAT the length of the tenancy in any event shall not less than 14 months inclusive of 2 month’s written notice.


In the formal Tenancy Agreement, there is one clause stated as following and there is no clause that mention the option for landlord to terminate.


At any time after the first twelve months of this Tenancy, the Tenant shall have the option to terminate this Tenancy prematurely by giving the Landlord two months’ advance notice in writing or by paying the Landlord a lump sum in cash equivalent to two months’ rent in lieu thereof. It is hereby declared by and agreed to by the Tenant that the Tenancy hereby created shall not terminate until after the expiration of 14 months from 7th January , 2007.



The agent told me if either party has the right to terminate, the option for both parties to terminate would be stated in Tenancy Agreement. If only Tenant has the option, it will only state this without mentioning the option of landlord. However my landlord said that “although the agreement does not mention her option to terminate, but it does not deny her option”


Here are my questions


l If my landlords want to present this case in front of court, do I have 100% of winning the case?

l Anyone knows a lawyer who is expert in this regard so that I can consult? I would like to know whether I am on the absolute right or not so that I know my bottom-line if I do need to re-negotiate a new rate with her.


Any advice or comments are highly appreciated!

First I should say I am very disappointed to see that contracts are being drawn up like this. You ought to have serious words with the agent responsible for that.


In every contract I prepare there is a clause that states that the rental amount shall not be changed during the course of the contract term. This is so fundamental to a fair contract that I wouldn't allow a contract to be signed unless the landlord agreed to it. In the event that a contract is signed for a period of more than one year, there may be an option included for a rental review after a specified period (not less than a year), but usually contracts are signed for just one year at a time and rents are naturally reviewed after that time, if the tenant wishes to stay on in the property and negotiate a new lease.


There should also be spelled out the terms under which the landlord may terminate the lease. It is reasonable to suppose that there would be legitimate conditions under which a landlord should be entitled to terminate a lease. To make no provision for such termination, therefore, puts the landlord in the position of being able to argue that the contract is unfair and on those grounds apply for it to be declared invalid.


You also should have a reasonable expectation that rents agreed at the time of the signing shall not be changed - even though this is not specifically stated in writing. You signed a contract agreeing to a particular monthly rental and, in the absence of any clause giving the landlord the right to change that rental arbitrarily, it is fair to assume that the rental to which you agreed should apply to the whole term of the tenancy. The presumtion of rights should fall in your favour, given an interpretation of 'fair contract' and in light of the fact that the clause apparently missing from your contract is standard in the majority of (fair) contracts. Your defence on these grounds, however, is not air-tight.


I'm sorry that I cannot recommend a lawyer, however I can recommend a new agent...

Tom, thanks very much for your message and I understand your point. Just one thing to clarify: when you say my landlord may argue the contract is unfair, how do you define the "fairness" in this case? As "faireness" is very subjective. I guess any contract that gives one party option to terminate can be somehow argued unfair. My thinking is, if you sign a contract, whether it is fair or not, you are obligated to honor it.

Fairness is indeed subjective. Parties to the contract may argue their case to a judge who will use his or her Considerable Wisdom to determine what is fair in each case.


It is unfortunate that there are still contracts signed these days (not only between landlords and tenants, but in all aspects of business) that are not even remotely fair to one party or the other.

The landlord does not have the right to give you two months' notice if it isn't stated in the Tenancy Agreement. I'm sure the agreement does state other reasons for which the landlord can give notice - for example, if you breach the terms of the agreement.

Idavy,


Thanks for the confirmation. It gives me comfort. In the contract, it mentions how notice to be served as following but I do not think it implies landlord has option to terminate the contract.


Any notice under this Agreement shall be in writing and any notice to the Tenant shall be sufficiently served if left addressed to him on the said premises or sent to him by registered post to his last known place of abode or business and any notice to the Landlord shall be sufficiently served if delivered to it at its address or sent by registered post addressed thereto

Yes, that's just talking about the way notice can be served. There should be other clauses in the Tenancy Agreement which talk about the reasons the landlord can give you notice. But he cannot use the break clause (the two months' notice before the end of the lease period) if it is not stated in the Tenancy Agreement.