Statutory tenancy - period of notice

was given a 6 month tenancy

A break clause was added to the lease to allow the landlord to terminate the lease after 6 months

You have a break clause that can only be used after the tenancy have already ended through time?

If you're in England, did you serve the "break notice" on Form 6A? If you're in Wales, what did the notice say wording wise?

Why is that that when clarification questions are asked so that the OP's original questions can be properly answer, do they never answer the clarification questions? It was a simple question, did you serve the notice on Form 6A if you're in England. I'm trying to find out whether you served a notice that could at least potentially be a valid s21 notice.

The break clause was included as part of the original 6 month contractual tenancy

This still doesn't make any legal sense. A break clause is a term allowing either the landlord and/or the tenant to bring a fixed term to an earlier end than it was otherwise agreed. For example, you agreed a 18 months tenancy, but have a break clause that allows a party at month 6 to serve notice to end it earlier. Whether you had a 6 months fixed term tenancy, or a contractual periodic tenancy with an initial 6 months term with a subsequent (possibly shorter) periodic element, there's nothing to break after six months. After six months, you have either a statuory periodic tenancy which arose at the end of the fixed term tenancy by operation of law or the continuation of a contractual periodic tenancy.

Section 5 of the Housing Act 1988 is what causes a statutory periodic tenancy to arise at the end of a fixed term tenancy if the fixed term was not ended by the action of the tenant. It effectively mean if a fixed term assured tenancy ends, a periodic tenancy is deemed granted by landlord to tenant on substantially the same terms as previously. A valid section 21 notice can be served during the fixed term extending into the subsequent statuory periodic tenancy.

If the "6 months tenancy" was a fixed term, then section 21 notice can end on any date as long as it meet the minimum length requirement. If the tenancy is a contractual periodic tenancy, then in Wales the end date must be the last day of a period of tenancy, and in either England and Wales, it cannot be "earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above". That earliest date will thus depends on how frequent the periodic element of the CPT is.

If you had merely given a break notice, whatever that means, which is otherwise invalid as a section 21 notice, then the break notice would merely bring an existing fixed term tenancy to an end. As such a fixed term tenancy wasn't bought to an end by action of the tenant, a statutory periodic tenancy would had arisen pursuant to s5 of the Housing Act 1988. You then would still had to serve a valid s21 notice, which as you are aware is currently at least 6 months long.

So back to my question. If you're in England, did you serve the "break notice" on Form 6A? If you're in Wales, what did the notice say wording wise?

You keep referring it to "contractual tenancy". How is the term (length, start & end date, etc.) of the tenancy actually defined in the tenancy agreement? Basically, is it a fixed term tenancy which has a defined start date, and absent any subsequent mutual agreement or exercise of a valid break clause, a defined end date?

"A six months tenancy from XX/12/2019"
"The tenancy will start from XX/12/2019 and end on XY/06/2020"
"A tenancy for a term of six months starting on XX/12/2019"

Or words to those effect?

Alternatively, is it what's known as a contractual periodic tenancy?

"A term of six months then continuing month by month"

Or words to that effect?

I accept that without the break clause then s5 of the Housing Act 88 would determine that the notice period would be 6 months

That's not what section 5 of the Housing Act 1988 does. You and your tenant both seems to have a misunderstanding on the wordings and effects of that legislation.

What's the wordings of the break clause?

Okay, that's a contractual periodic tenancy with a six months initial term and then the period is monthly.

That is not a break clause. Stop calling it a break clause. Do not refer to it as a break clause when communicating with your tenant or their representative. A break clause exist to allow the termination of a fixed term tenancy earlier than it would otherwise. This is just a clause setting out how this periodic tenancy can be ended.

I can see maybe they are trying to say, yes there was a break notice, it was used to end the original tenancy. Because the original tenancy was ended by the landlord and not the tenant, and the tenancy was assured when it ended, a new periodic tenancy was deemed granted pursuant to s5(2). This new tenancy has the same periods as the previous tenancy, so the initial period is six months. And that's where they're going from. However, a statutory periodic tenancy under s5(2) requires as a pre-condition a fixed term tenancy originally, which this isn't, so I don't see how that section come into play at all.

So your position should probably be along the following line: this "break clause" that's not really a break clause set out how the tenancy can be determined absent any legislative intervention. However, as the tenancy is currently assured shorthold, the clause only has effect as to date calculation under s21(4) of the earliest date when a notice under that section can expire. You served a notice under s21(4) of the 1988 Act, a minimum of 3 months as required under Coronvirus Act at the time of service. Section 21(4)(b) requires the notice not to expire "earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice". That earliest day is 2 months from service per your "break clause". Your 3 months notice satisfy that requirement. Ergo, (assuming things like deposit protection compliance and others), the notice was a valid notice under s21(4). You have 7 months from the date of service of the notice to apply to court for an order for possession. (Works out to around 4 months after notice expiry.)

should say pay 5 months initially and then pay the last month separately

That only matters if the tenancy is fixed term. The intent there is when that fixed term ends and a statutory periodic tenancy arise, the most recent payment period immediately before the tenancy ended was for a month, causing the SPT to be monthly.

"from and including 14.12.19 to 13.06.20 and thereafter month to month" is clearly a contractual periodic tenancy, and not a fixed term tenancy (of six months).

Authorities are likely to be light on the ground because it's such a settled way of describing a term for CPT, but Leeds City Council v Broadley [2016] EWCA Civ 1213 is probably what you're looking for.

Thankyou for your help however I’m still questioning whether the payment of the 6 months rent ‘up front’ does not differentiate it from the Leeds case.