Getting a deposit returned after completion of a joint tenancy agreement

may_fair

DVardysShadow wrote: »

If one tenant just vacates at the end of the assured term, wothout giving notice, I would agree. But if one gives notice, correctly, for the end of the assured term, then the other tenant is in the same situation as if they had stayed after notice had been given by the first some time into a periodic tenancy.

As I see it, it does not require a break clause for a tenant to serve notice within the fixed term to take effect at the end of the fixed term

If there is no break clause, then a T's 'notice to quit' has no legal effect when served during the fixed term. The T either vacates at fixed term expiry (thus ending the tenancy) or he does not vacate (and an SPT will arise).

In a joint tenancy, all JTs are, collectively, 'the Tenant', so if only one JT moves out at fixed term expiry, this does not end the tenancy and a SPT will arise.

Benji

The agent wants to 'assign' your space on the tenancy to someone else. They want to do this because it is a lot less work than ending your current tenancy and starting a new one.

However, they will need your signature on a deed of assignment to do this properly (ha ha) so make sure you sign nothing agreeing to assignment.

Tell them that your notice brings the tenancy to a close for all tenants and that if they want to agree a new tenancy with your flatmate and his new friend, that is fine. As you will see from the discussion above, it is not 100% clear that this is legally the case, but if you wave the 'shelter' link in their face it will give your claims a degree of weight.

DVardysShadow

may_fair wrote: »

...
In a joint tenancy, all JTs are, collectively, 'the Tenant', so if only one JT moves out at fixed term expiry, this does not end the tenancy and a SPT will arise.

But what I said was about 1 tenant giving notice for the end of the assured term - not about moving out,

So what if 1 tenant gives notice for the end of the assured term? I just don't buy the idea that you cannot give notice for the end of the term. I can see that if notice is served effective within the term, it has no legal effect, but I cannot credit that notice served correctly within term and effective immediately on the end of the assured term has no legal effect.

may_fair

DVardysShadow wrote: »

But what I said was about 1 tenant giving notice for the end of the assured term - not about moving out,

So what if 1 tenant gives notice for the end of the assured term? I just don't buy the idea that you cannot give notice for the end of the term. I can see that if notice is served effective within the term, it has no legal effect, but I cannot credit that notice served correctly within term and effective immediately on the end of the assured term has no legal effect.

As I said, the T either vacates at fixed term expiry or he doesn't. T's notice served within the fixed term has no effect on this, regardless of when it expires. Only when the tenancy becomes periodic can a single JT serve notice to end the tenancy.

may_fair

Benji wrote: »

The agent wants to 'assign' your space on the tenancy to someone else.

I don't think it's yet clear that this is the case, but I agree it sounds possible from OP's statement that the agent says "the new tenant is a replacement for the leaving tenant despite the fact that the original tenancy agreement will be completed by both the original tenants".

However, OP needs to clarify the position and whether the fixed term has or hasn't expired, etc.

DVardysShadow

may_fair wrote: »

As I said, the T either vacates at fixed term expiry or he doesn't. T's notice served within the fixed term has no effect on this, regardless of when it expires. Only when the tenancy becomes periodic can a single JT serve notice to end the tenancy.

What bars him from serving notice effectively not to go periodic? I can see that without a break clause it is not meaningful to serve notice with an effective date within the assured term. But [I have seen others come forward with your position] I see nothing with bars notice with a service date within the assured term, effective at its end.

may_fair

DVardysShadow wrote: »

What bars him from serving notice effectively not to go periodic? I can see that without a break clause it is not meaningful to serve notice with an effective date within the assured term. But [I have seen others come forward with your position] I see nothing with bars notice with a service date within the assured term, effective at its end.

The fixed term will expire regardless of whether T serves notice or not. A SPT will arise if T (or one or more of several JTs) remains in occupation after fixed term expiry regardless of whether T serves notice or not. T's notice therefore has no legal effect.

T's notice cannot prevent a SPT arising unless it is served under a break clause. In that case, T's notice will end the tenancy under s.5(2)(b) HA1988. But a break clause will invariably require 'the Tenant' to exercise it and in a joint tenancy that means all JTs collectively.

Chev_Chelios_2

may_fair wrote: »

@Chev, please can you tell us:

Date fixed term began (dd/mm/yy)
Length of fixed term (and whether it specifies an 'end' date)
Has anyone served notice (LL or T)? If so, please give details
When does T who wants to leave intend to move out?
Is rent payable monthly/weekly?

Hi may_fair, apologies for taking some time to reply. The fixed term began on 16th July 2010 for one year. I don't believe that the agreement specifies an end date (apologies, I am asking for this advice on someone else's behalf) but 15th July 2011 is the assumed end date by the tenant wishing to leave and they will have vacated the room by then. The tenant has informed the Letting agent of her attention to leave and has also informed all of the utility companies and local council. She has asked the letting agent to perform the final inventory check and 'walk around' by this point so that she can receive her deposit back and complete any other formalities. The rent is paid monthly. Thanks for your help.

DVardysShadow

may_fair wrote: »

The fixed term will expire regardless of whether T serves notice or not. A SPT will arise if T (or one or more of several JTs) remains in occupation after fixed term expiry regardless of whether T serves notice or not. T's notice therefore has no legal effect.

T's notice cannot prevent a SPT arising unless it is served under a break clause. In that case, T's notice will end the tenancy under s.5(2)(b) HA1988. But a break clause will invariably require 'the Tenant' to exercise it and in a joint tenancy that means all JTs collectively.

(2)If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—

(a)an order of the court [F2of the kind mentioned in subsection (1)(a) or (b) or any other order of the court], or

(b)a surrender or other action on the part of the tenant,

then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section.

I really don't see that a tenant requires a break clause to give notice prevent an SPT arising at the end of the assured term. Tenant can surrender at the end of the assured term [I assume this means move out] or give notice within the term but effective for the end of it. Nothing you have referenced prohibits or proscribes giving notice effective at the end of the term.

jjlandlord

DVardysShadow wrote: »

I really don't see that a tenant requires a break clause to give notice prevent an SPT arising at the end of the assured term. Tenant can surrender at the end of the assured term [I assume this means move out] or give notice within the term but effective for the end of it. Nothing you have referenced prohibits or proscribes giving notice effective at the end of the term.

That's a good point.
Usually we focus on the fact that no notice is required to end the tenancy at the end of the fixed term, and on the fact that if the tenant does nothing the tenancy will automatically become periodic.

But indeed section (2)(b) can be interpreted in a way such that an "action of the part of the tenant" will prevent the periodic tenancy from arising.