Joint Tenancy’s – How to end?

Planner

As there have been a number of threads alluding to this point in the past week, rather than hijack the threads in question, I have started this thread to discuss the following question:

Is it possible for a single tenant (call them tenant A), in a Joint Tenancy, to unilateral end the tenancy by serving notice during the fixed term without the other joint tenant(s) agreement (call them tenant , to move out at the end of the fixed term?

My view on this is NO. For Three principle reasons:

1) Joint tenancy’s are just that – joint – all decisions during the fixed term must be made jointly;

2) It is not possible for tenant A to serve valid notice during the fixed term of a tenancy agreement;

3) Immediately at the coming to an end of a fixed term agreement, a periodic tenancy arises. This is a statutory right. It would therefore remove tenant B’s right to remain in the property for a further month on a periodic tenancy is tenant A could unilaterally end it during the fixed term.

Any views?

Jowo_2

Joint tenancies operate as if there is a single tenant. This single tenancy happens to be composed of multiple tenants but that's irrelevant to its operation. Therefore a joint tenancy can be ended by one of the tenants within it giving notice. A tenant that wishes to remain after the current tenancy has been ended by the other(s) must negotiate a new tenancy with the landlord.

Decisions do not need to be made jointly - they can be made by a single individual and simply apply to all. Landlords prefer joint tenancies in order that they cut down on the admin involved and don't get sucked into disputes. Under a joint tenancy, tenants are jointly and severally liable. Rent of x sum is due on x date and even if the tenants have decided among themselves what share of rent they will contribute, if someone doesn't pay, they are all in arrears, it's not up to the landlord to apportion blame and go after the specific non paying tenant, all are culpable.

Planner

How would tenant A stop the periodic tenancy arising?

Jowo_2

There have been debates here about scenarios where one joint tenant ends the tenancy and moves out, and one refuses to leave, whether the outgoing tenant has any liability or not. The conclusion I can't remember.

It centres on whether the moving out of the property by a joint tenant who has notified the landlord that they will not be extending the tenancy means that they have ended the tenancy and aren't liable. In those circumstances, it cannot become a periodic tenancy simply because this means all existing terms and conditions of the previous tenancy would continue, which isn't the case if its been terminated.

Others say that the failure to hand over vacant possession means the tenancy continues because a joint tenancy operates as if only a single tenant is in place, therefore if an individual tenant remains, the tenancy is still active.

Hopefully someone will come along and clarify the actual legal position.

ceh209

But what if one tenant wants to leave at the end of the fixed term, and the remaining tenants don't renegotiate anything with the landlord?

Can that tenant be held liable for the rent simply because the others refused to move out/do anything about it?

I'm not saying I know the answer, but that situation would seem inherently unfair if the leaving tenant cannot avoid liability by the inactions of others (at least for a month)

Planner

Allow me to clarify my view:

Point 1) If a Landlord grants a fixed term tenancy to A and B, A and B are both tenants right up to the very last moment of the fixed term, even if A or B or both leave the premises. - do we agree on Point 1?

Point 2) If the tenancy was an assured tenancy when both A and B were in occupation together it will still be an assured tenancy if one of them leaves, so long as all the other conditions necessary for it to be an assured tenancy are in place - Section 1 (1) of the Housing Act 1988 which provides:

A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as -

(a) -

(b) the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home

Do we agree on Point 2?

Point 3) If the tenancy was an assured tenancy at the very last moment of the fixed term, then at the very first moment following the end of the fixed term a periodic statutory tenancy arises. The tenants under this new tenancy are the same as those who were tenants when the fixed term came to an end. - Section 5 (3) of the Housing Act 1988 which provides:

The periodic tenancy referred to in subsection (2) above is one-

(a) taking effect in possession immediately on the coming to an end of the fixed term tenancy;

(b) deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the person who was then the tenant under that tenancy;

Do we agree on Point 3?


Point 4) A periodic tenancy continues until it is brought to an end. A tenant can bring it to an end by notice to quit. Such a notice can be given by one of two or more joint tenants, and without taking the wishes of the other tenant(s) into account or referring to them. However, any notice given during the fixed term is ineffective. This is confirmed by Section 5 (5) of the Housing Act 1988 which provides:

If, on or before the date on which a tenancy...is deemed to have been granted as mentioned in subsection (3)(b) above, the person who is to be the tenant under that tenancy-

(a) -

(b) executes, signs or gives any surrender, notice to quit or other document which (apart from this subsection) has the effect of bringing the tenancy to an end at a time when it is an assured tenancy,

...the surrender, notice to quit or other document referred to in paragraph (b) above shall be of no effect.

Do we agree on point 4?

The combined effect of all the above is that where there are two or more tenants and the tenancy is assured, when it comes to an end a periodic tenancy arise by statute and that tenancy is one under which the tenants are exactly the same persons who were tenants immediately before it began. A joint tenant who has left and “wants out” is liable for rent payable in respect of the new tenancy until that tenancy is ended.

The only way the tenancy can be brought to an end unilaterally by the tenant is by notice to quit. Accordingly, unfair as it may seem, if you have the situation where there were joint tenants and one stays and one leaves, the obligations of the tenant who leaves continue beyond the fixed term.

tbs624

Planner's view is apparently based on a Painsmiths article.

As I said in the other threads Planner - please flag up some relevant case law.

DVardysShadow

Planner wrote: »

A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as -

(a) -

(b) the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home

Do we agree on Point 2?

I don't think an assured tenancy is an assured shorthold tenancy.

DVardysShadow

Planner wrote: »

Point 4) A periodic tenancy continues until it is brought to an end. A tenant can bring it to an end by notice to quit. Such a notice can be given by one of two or more joint tenants, and without taking the wishes of the other tenant(s) into account or referring to them. However, any notice given during the fixed term is ineffective. This is confirmed by Section 5 (5) of the Housing Act 1988 which provides:

If, on or before the date on which a tenancy...is deemed to have been granted as mentioned in subsection (3)(b) above, the person who is to be the tenant under that tenancy-

(a) -

(b) executes, signs or gives any surrender, notice to quit or other document which (apart from this subsection) has the effect of bringing the tenancy to an end at a time when it is an assured tenancy,

...the surrender, notice to quit or other document referred to in paragraph (b) above shall be of no effect.

Do we agree on point 4?

Your conclusion that any notice given during the fixed term is ineffective is false. You are confusing the time of giving the notice with the time it brings the tenancy to an end.

Perfectly acceptable for tenant to give notice within the assured period. The legal constraint is not on when notice is given, it is on when it takes effect. It only cannot bring a tenancy to an end during the assured period. It can take effect the moment the assured period is over.

THI

Planner wrote: »

As there have been a number of threads alluding to this point in the past week, rather than hijack the threads in question, I have started this thread to discuss the following question:

Is it possible for a single tenant (call them tenant A), in a Joint Tenancy, to unilateral end the tenancy by serving notice during the fixed term without the other joint tenant(s) agreement (call them tenant , to move out at the end of the fixed term? Yes, sort of - A can indicate his intention to vacate at the end of the original term, without B's consent, because this is a fixed term agreement which will end, unless a further agreement is made to extend the same tenancy on either a fixed term or a statutory periodic agreement. The tenant is not required to formally give notice to end a fixed term. Then it is up to B to renegotiate with the landlord and enter into a new agreement with the Landlord, effective from the end of the original term.

My view on this is NO. For Three principle reasons:

1) Joint tenancy’s are just that – joint – all decisions during the fixed term must be made jointly; There really aren't any decisions to make in a fixed term - it is just that - fixed and both are jointly liable.

2) It is not possible for tenant A to serve valid notice during the fixed term of a tenancy agreement; Partly right - it is a fixed term so it is assumed that they will both leave at the end of the term unless agreement is made by one or both to extend. There is no need for the tenants to give formal notice in a fixed term. However any notice or indication that one will leave only become effective at the end of the original tenancy - he cannot just up and walk away from his liabilities during this fixed term. He can physically walk away of course but remains liable.

3) Immediately at the coming to an end of a fixed term agreement, a periodic tenancy arises. This depends whether the Landlord has served notice on the tenant in which case the tenants would be required to leave. If a new agreement has not been entered into, a statutory periodic arises. This is a statutory right. I don't believe this is correct!!

It would therefore remove tenant B’s right to remain in the property for a further month on a periodic tenancy is tenant A could unilaterally end it during the fixed term.
Any views?

There is some confusion here!

Planner

DVardysShadow wrote: »

Your conclusion that any notice given during the fixed term is ineffective is false. You are confusing the time of giving the notice with the time it brings the tenancy to an end.

Perfectly acceptable for tenant to give notice within the assured period. The legal constraint is not on when notice is given, it is on when it takes effect. It only cannot bring a tenancy to an end during the assured period. It can take effect the moment the assured period is over.

My conclusions are based on the wording of the housing act.

One last stab.

X. Section 5 (5) of the Housing Act 1988 says that any notice served in the fixed term will be invalid if a periodic tenancy arises.

Y. Section 5 (2) and (3) says that immediatley on coming to an end of the fixed term, the tenancy becomes a periodic tenancy, if the tenant still present.

Z. Section 1 (1b) of the Housing Act 1988 says a tenant is a single tenant occupying the house or at least one of the joint tenants occupying the house.

So the effect of B still in occupation is as per Y, a periodic tenancy. The effect of the periodic tenancy is X, any notice served during the fixed term is invalid. Conclusion A&B are still tenants under a periodic tenancy. Simples.