Forced to leave joint tenancy by ex - where do I stand?

DVardysShadow

Planner wrote: »

I actually disagree with the information you have been given here on serving notice, in particular - One person on a joint-tenancy giving notice is giving notice for both parties. My view is that it isnt possible for 1 tenant in a joint tenancy to serve notice during the fixed term, because this removes the other joint tenants statutory right to a periodic tenancy to arise after the end of the fixed term (Hiousing Act 1988).

I believe, 'legally' you should have served notice just before the end of the 6 months fixed term to leave at the end of month 7 i.e. the first month of the periodic tenancy.

Luckly the Agents havent spotted this!

To summarise - it isnt possible for one tenant in a joint tenancy to unilaterally end the tenancy at the end of the fixed term for both parties. It is possible for one joint tenant to unilaterally end the tenancy after a periodic tenancy as arisen.

I think this is interesting but muddled thinking.

The 'other tenant' does not have a right for a Statutory Periodic tenancy - except as part of the joint and several Tenant. And if the 'first tenant' gives notice for the end of the first month of the Statutory Periodic tenancy, the whole tenancy would be over for both tenants - so what is the point of the other tenant having a right to a Statutory Periodic tenancy? Particularly if that right can only be upheld for a month?

Perhaps this is clearer put this way. When the first tenant gives notice on the tenancy, it effectively dissolves the Joint and Several partnership. The Joint and Several partnership only endures for as long as anything it has committed itself to. If it has committed to the fixed term then it only endures past the fixed term and goes statutory periodic under the normal rule of staying past the end of the fixed period.

[For this reason, I believe a single Joint and Several Tenant should give full notice before the end of the fixed period]

Planner

DVardysShadow wrote: »

I think this is interesting but muddled thinking.

The 'other tenant' does not have a right for a Statutory Periodic tenancy - except as part of the joint and several Tenant. And if the 'first tenant' gives notice for the end of the first month of the Statutory Periodic tenancy, the whole tenancy would be over for both tenants - so what is the point of the other tenant having a right to a Statutory Periodic tenancy? Particularly if that right can only be upheld for a month?

Perhaps this is clearer put this way. When the first tenant gives notice on the tenancy, it effectively dissolves the Joint and Several partnership. The Joint and Several partnership only endures for as long as anything it has committed itself to. If it has committed to the fixed term then it only endures past the fixed term and goes statutory periodic under the normal rule of staying past the end of the fixed period.

[For this reason, I believe a single Joint and Several Tenant should give full notice before the end of the fixed period]

DVardysShadow. Thanks for you comments. Unfortuanltey nothing you say above changes my view.

Planner

After a little more thinking:

Dvardy- Your view that the 'other tenant' only has a right to a peridocic tenancy as part of the joint and several Tenancy - seems to be at odds with the O/P (as half of a joint tenant) having a unilateral right, as part of the same joint and several tenacy, to end it.

The point of the peridoic tenancy is for the majority of cases where tenants and joint tenants all want to stay on after the end of a fixed term, not for the tiny minority of cases like this. A quirk of the law in this situation, but nevertheless, the law.

Again I disagree with your second paragraph that in a fixed term, one tenant of a joint tenancy can unilaterally 'disolve' the joint tenancy.

As you say 'the Joint and Several partnership only endures for as long as anything it has committed itself to'. In this instance 1/2 the joint tenancy wishes to leave and the other 1/2 wishes to stay. There is therefore no agreement as to what the joint tenancy as comitted itself to. Therefore the only possible position is the default position - a statutory periodic tenancy arises.

a_gerbil

You've managed to confuse me even more between you both, lol

The situation now is that the deposit is in dispute. They want to give me back half (£650), I paid 2 thirds of it so want that back (£866) so we are disputing £216.

The letting agency also let it slip that they have let my ex signed a new agreement for herself with effect from 1st July, which would overlap by 1 month. Surely they should return the rent that 1 paid on 1st July ??

jockosjungle

Have you any proof you paid 2/3s? I'd say it was reasonable to assume a joint tenancy you paid half each, I'm sure you did but can you prove this is any way and would the LA have a record of it?

I know this person sounds like a piece of work but is it worth it for £216?

R

a_gerbil

jockosjungle wrote: »

Have you any proof you paid 2/3s? I'd say it was reasonable to assume a joint tenancy you paid half each, I'm sure you did but can you prove this is any way and would the LA have a record of it?

I know this person sounds like a piece of work but is it worth it for £216?

R

I've got proof that I withdrew the money from the bank in cash. And considering she's cost me an absolute fortune by throwing me out, finding somewhere to live and refusing to give me back about £400 of my stuff then yes £216 is worth a lot to me.

Jowo_2

Speak to Shelter to clarify the position. As far as their website goes, a joint tenant who legimately serves notice ends the tenancy and it is up to the remaining tenant to negotiate a new contract with the landlord. I do expect the fact that they remaining tenant stays there is a grey area with regards to a periodic tenancy and the departing tenants obligations, too. But Shelter will confirm where the OP stands.

Planner

a_gerbil - dont fell confused! your agent has accepted your notice and got your ex to sign another agreement. Just keep in mind that, legally, they didnt have to do this imho.

Jowo - The Shelter website is far to general for this particular situation (although I would suggest it 'hints' at my viewpoint).

DVardysShadow

Planner wrote: »

After a little more thinking:

Dvardy- Your view that the 'other tenant' only has a right to a peridocic tenancy as part of the joint and several Tenancy - seems to be at odds with the O/P (as half of a joint tenant) having a unilateral right, as part of the same joint and several tenacy, to end it.

Eh? It is entirely consistent. A unilaterally ends it. B's right to the periodic tenancy only derives from the AST signed by A+B. But if A has ended it, then A+B are no longer bound after the notice given by A expires. B is not A+B. B no longer has rights and must set up a new teancy in order to stay.

Planner wrote: »

The point of the peridoic tenancy is for the majority of cases where tenants and joint tenants all want to stay on after the end of a fixed term, not for the tiny minority of cases like this. A quirk of the law in this situation, but nevertheless, the law.

Again I disagree with your second paragraph that in a fixed term, one tenant of a joint tenancy can unilaterally 'disolve' the joint tenancy.

As you say 'the Joint and Several partnership only endures for as long as anything it has committed itself to'. In this instance 1/2 the joint tenancy wishes to leave and the other 1/2 wishes to stay. There is therefore no agreement as to what the joint tenancy as comitted itself to. Therefore the only possible position is the default position - a statutory periodic tenancy arises.

If one tenant cannot end the tenancy unilaterally, the arrangement is inequitable. A would be bound jointly and severally to the performance of a contract which B decides to continue and A would remain liable for rent and any other defaults of B.

This needs to be resolved by a court - and may well have been. If A does nothing but moves out on the last day of the fixed term, the tenancy goes periodic. But if A gives notice - assuming the notice is valid and B stays, then B is in the position of a tenant who gives notice but remains after giving notice. This can be resolved by agreement between Tenant and Landlord within the scope of the original AST in the case of a single Tenant. But in the case of a Joint and Several Tenant it cannot be resolved within the scope of the original AST without the participation of A who originally gave notice. Otherwise B would be in the position of unilaterally binding A to an extension of the tenancy.

The legal dilemma is this:

• If A is allowed to unilaterally give notice, B loses the benefit of the AST going periodic, which is a finite loss
• If B is allowed to unilaterally bind A to a tenancy even after A has given notice, A is bound to a periodic AST for an indefinite period and remains jointly and severally liable for B's defaults, which could be an open ended loss

I have understood from here for a while that it only takes 1 joint and several tenant to give notice and it makes sense because this is the choice noted above which causes least potential damage.

The one thing which does not happen is for a joint and several tenancy to roll periodic in the name of B after A has given notice. That is unless B and the Landlord agree something. But if they do, that is for them. A has given notice and cannot be bound by an agreement between B and the Landlord. Up to the point that the Landlord and B agree, B is effectively a Tenant who has stayed beyond their notice [and I think that this is a default for which A is jointly and severally responsible]. After the Landlord and B agree, A is absolved of all further responsibility.

[Really I know nothing]

Planner

DVardysShadow wrote: »

The legal dilemma is this:

• If A is allowed to unilaterally give notice, B loses the benefit of the AST going periodic, which is a finite loss
• If B is allowed to unilaterally bind A to a tenancy even after A has given notice, A is bound to a periodic AST for an indefinite period and remains jointly and severally liable for B's defaults, Which could be an open ended loss

The question is - is A (of A and allowed to give unilateral notice, during the fixed term, to end a joint tenancy. My view is no. A joint tenancy is just that, a joint tenancy. There decision must be made in unision to have any effect For example, I would assume you would agree that:

- They are both bound to pay the rent;
- They are both bound to use the property in a tenant like matter;
- They are both bound to tell the landlord of the need for repairs; and
- They are both bound by whatever other clauses there are in the agreement.

Yet your view is that they are not bound when it comes to serving notice in the fixed term? this is obviously a divergent point to the rest if the above list and therefore logically incorrect.

I am sure we can all agree that if both tenants agreed to serve notice during the fixed term, to leave at the end of the fixed term, the notice would be valid.

My view is that A (of A&B) cannot serve valid notice during the fixed term unilaterally. Its simply not possible due to the joint nature of the tenancy agreement. Any unilateral notice served during the fixed term, will be by definition, invalid.

Therefore with no correct notice, it is inevitable that a joint periodic tenancy arises as per housing act 1988.

Indeed, your previous post said it very succinctly - The Joint and Several partnership only endures for as long as anything it has committed itself to - It is the commitment of A&B until such a time that A&B decide to end that commitment or the time arises when A or B can end that commitment alone. That time does not arise until the start of the periodic.

However, after the periodic has arisen, valid notice can be served by A (of A&B) because it is possible to unilaterally serve notice during the periodic tenancy and it would not have the unwanted impact of removing B right to a periodic tenancy. Your comment that B has the power to hold A to a periodic tenancy indefiantley is obviously a tonge and cheek sugestion. The maximum that A could every be held to would be one month of periodic tenancy.

There are various pieces of caselaw out there and a Painsmith info sheet which has anoyingly disapeared from their website.

Unfortuanltey many things you learn on forums - I have understood from here for a while that it only takes 1 joint and several tenant to give notice and it makes sense because this is the choice noted above which causes least potential damage - are legally incorrect.