Joint tenancy dispute

TangoBear

Hi there - hoping to get some help with a slightly complex tenancy issue. I have done a reasonable amount of research on the web and have not yet found a definitive answer.

For background:

• Assured Shorthold Tenancy in England
• 12m contract, with 6m break clause with 2m notice required after this period (i.e. min term 8m). We are currently 2m into this.
• Joint tenancy signed by the two parties living in the property
• Assignment clause in the tenancy stipulates: "Not to assign underlet (or) part with or share the possession of the Premises and not to permit any persons other than the person named as the Tenant or any other person approved of in writing by the Landlord to occupy or reside in the Premises. (Not to take in lodgers or paying guests) without the Landlord’s written consent which shall not be withheld unreasonably."
• While it's a joint tenancy, the landlords preference was for one payment to be received, so the other tenant pays me his rent and I pay the full rent to the landlord.

Current situation:

• The other flatmate has announced he wishes to leave the flat asap due to personal issues, albeit acknowledging it will take circa a month to find a replacement tenant. I intend to stay in the flat.
• I have explained he has signed a legally binding contract, the fact we have a J&S guarantee etc.
• I have suggested an 'informal' two months notice period, on the basis that (a) the landlord is willing to accept the lease being assigned to a new party, (b) I will do my best to find someone within the two months and therefore reduce the time he needs to stay/pay and (c) this does not change the fact he remains liable for the next 6 months (i.e. we're currently 2m into a min term of 8m).
• While the other tenant has suggested he will try and get someone I like, their number 1 priority appears to be moving out asap. On this basis he has suggested it should be him advertising for a new flatmate in order to get someone in asap. I have suggested this is unacceptable to me and I should be the one advertising (obviously dont want to live with someone I dont like for 6m minimum!).

So I have the following questions:

• My research so far suggests both myself and my landlord would have to sign an assignation document if he formally passes the lease to someone, i.e. I could refuse to sign. Is this correct?
• As per the point above, what right does he have to sublet his room in the event he gains landlord approval but not mine?
• In an extreme situation could I point blank refuse to have anyone else join the flat as a new tenant or as a subleasee of him? I'm conscious of the J&S guarantee and in theory would have the funds to cover the full rent for the minimum term and (regretfully) go down the court route to claim the monies I'm out of pocket back from him.
• Does my suggestion of 'informal' two months notice period with the 3 caveats seem like a fair compromise?
  My default position of any costs related to this should be for him to pay - I do not see why either the landlord or myself should be out of pocket. Is this reasonable / standard?
• Is there anything else I should be aware of legally speaking?

Obviously hoping to resolve all of this amicably but need to know what I can and cannot do if he starts playing silly b*ggers!

Kind regards!
TB

BitterAndTwisted

TangoBear wrote: »

• My research so far suggests both myself and my landlord would have to sign an assignation document if he formally passes the lease to someone, i.e. I could refuse to sign. Is this correct? You can refuse to sign but that won't extricate you from the "joint & several liability" as you both are equally responsible for paying the whole of the rent. Your flat-mate naffs off, you won't agree to have anyone else sharing and you're saddled with paying all of the rent on your own.
• As per the point above, what right does he have to sublet his room in the event he gains landlord approval but not mine? He can't and you have the means to prevent it.
• In an extreme situation could I point blank refuse to have anyone else join the flat as a new tenant or as a subleasee of him? I'm conscious of the J&S guarantee and in theory would have the funds to cover the full rent for the minimum term and (regretfully) go down the court route to claim the monies I'm out of pocket back from him. Yes, you could point-black refuse, and then pay the whole of the rent yourself.
• Does my suggestion of 'informal' two months notice period with the 3 caveats seem like a fair compromise? No, it doesn't UNLESS your landlord accepts a reassignment of the lease and you sign up someone else.
  My default position of any costs related to this should be for him to pay - I do not see why either the landlord or myself should be out of pocket. Is this reasonable / standard? I think your position is fair.
• Is there anything else I should be aware of legally speaking?

Obviously hoping to resolve all of this amicably but need to know what I can and cannot do if he starts playing silly b*ggers!

Kind regards!
TB

What you appear to be forgetting is that you are only two months into a 12-month AST, so neither of you are in a position to give anyone notice until you can activate the break-clause. Anything else is in the gift of your landlord.

I'd be minded to tell your flat-mate that what you can and might consider doing is taking him/her to court in order to make them pay their half of the rent if they decide to go and leave you paying the rent on your own if they don't want to be reasonable about leaving you in the lurch.

BigAunty

The Shelter website gives pointers on how to end a fixed term and joint AST and how to cope with joint tenant disputes.

At the end of the day, the landlord doesn't have to accept any change to the contract and can seek the rent arrears from either you or the outgoing tenant because you are jointly and severally liable for the rent on a joint tenancy. Most will try to mitigate their losses by cooperating with changes that don't affect their pocket.

There is no such thing as a 'share' of the rent at a contract level so the agreement between you and the other tenant to split the rent is just between you, not between you and the landlord. This is part of the reason why landlords love joint tenancies - it stops them from being sucked into tenancy squabbles over who is paying what sum when. The rent of x is due on x date and it matters not a jot who pays it, from anyone is fine.

Do remind your flat mate that non-occupancy of the property doesn't stop his obligation to pay rent that's contractually due and he is in no position to serve notice on a fixed term contract - that's the FIXED bit. The landlord can't serve notice on you both either in this term, what could be fairer?

TangoBear

BitterAndTwisted wrote: »

What you appear to be forgetting is that you are only two months into a 12-month AST, so neither of you are in a position to give anyone notice until you can activate the break-clause. Anything else is in the gift of your landlord.

I'd be minded to tell your flat-mate that what you can and might consider doing is taking him/her to court in order to make them pay their half of the rent if they decide to go and leave you paying the rent on your own if they don't want to be reasonable about leaving you in the lurch.

Hi, thanks for the reply. I agree we are not in a position to formally give notice. However my main question is around that fact that in my flatmates eyes he can get someone in of his choosing (subject to landlord approval but not mine) to continue on the tenancy. Essentially do I have the right to veto anyone else coming in (either via assignment or sublet) provided the rent gets paid in full (even if that is me and I have to sue thereafter)?

Again, I hope to not go down that 'extreme' route, but in terms of negotiating with my flatmate it would be useful to know.

TangoBear

BigAunty wrote: »

The Shelter website gives pointers on how to end a fixed term and joint AST and how to cope with joint tenant disputes.

At the end of the day, the landlord doesn't have to accept any change to the contract and can seek the rent arrears from either you or the outgoing tenant because you are jointly and severally liable for the rent on a joint tenancy. Most will try to mitigate their losses by cooperating with changes that don't affect their pocket.

There is no such thing as a 'share' of the rent at a contract level so the agreement between you and the other tenant to split the rent is just between you, not between you and the landlord. This is part of the reason why landlords love joint tenancies - it stops them from being sucked into tenancy squabbles over who is paying what sum when. The rent of x is due on x date and it matters not a jot who pays it, from anyone is fine.

Do remind your flat mate that non-occupancy of the property doesn't stop his obligation to pay rent that's contractually due and he is in no position to serve notice on a fixed term contract - that's the FIXED bit. The landlord can't serve notice on you both either in this term, what could be fairer?

Hey, thanks for the reply - I agree the landlord is absolutely correct to want full rent regardless of what is going on, and under the J&S guarantee I undertand and am willing to pay the full wack if needs be (and attempt to get the monies back from the exiting tenant thereafter).

TangoBear

TangoBear wrote: »

Hi, thanks for the reply. I agree we are not in a position to formally give notice. However my main question is around that fact that in my flatmates eyes he can get someone in of his choosing (subject to landlord approval but not mine) to continue on the tenancy. Essentially do I have the right to veto anyone else coming in (either via assignment or sublet) provided the rent gets paid in full (even if that is me and I have to sue thereafter)?

Again, I hope to not go down that 'extreme' route, but in terms of negotiating with my flatmate it would be useful to know.

Just noticed your answers to my points in the section you quoted from me, which are all very useful points - very much appreciated!

BitterAndTwisted

The landlord cannot assign the tenancy or force you to sign another AST with a person who you do not want to share the property with. No sensible landlord would seek to force someone living with you that you have not agreed to. I would say, under the circs, that this is the last thing that would happen.

Much more common would be for the co-tenant to skip off and leave you in the lurch if you won't agree to try and negotiate with the landlord.

Only two months in and you're both already going to be a pain the the @rse!

TangoBear

Tell me about it - I feel awful for the landlord as he seems like a good guy and doesn't deserve hassle!

Thanks again for your thoughts, much appreciated.

BigAunty

TangoBear wrote: »

I undertand and am willing to pay the full wack if needs be (and attempt to get the monies back from the exiting tenant thereafter).

Are you in Scotland or in England, for example? There are slightly different small claims court processes between them.

Unless you know the forwarding address of your flat mate and where they work, it can be really difficult to serve papers and then enforce payment via an attachment of earnings if they refuse to cooperate. You might end up paying for a tenant tracing service if they flit owing you money.

A person with knowledge around address data and debt processes will know how to fly under the radar to avoid being found and will know ways to step aside from any enforcement action, such as an attachment of earnings, by just changing jobs and not going on the electoral register to thwart tracing. I believe some debtors can easily get their debts written off quickly and cheaply via a DRO though I don't know if it covers rent arrears or CCJs relating to this or not.

So your best bet is amicable resolution because the small claims court is known to recover very little in the way of judgements made by claimants.

dancingfairy

If you explain the situation to the landlord he may be amenable to an ammendment to the contract or letting you out of this contract and signing a new one with your new housemate.
Obviously though you have all signed a legally binding agreement and the landlord may not care how he gets the rent (just that he gets it from one or other of you).
df
edit: I'd suggest that as your housemate is the one with the problem he should be liaising with the landlord and he should be the one advertising and paying any associated costs and that he has to find a tenant who you are amenable to.

G_M

Any Deed of Assignment of the tenancy (ie to substitute a new person for your outgoing mate) would need to be signed by all parties:

* both current joint tenants
* new tenant
* landlord

The alternative would be to completely end the existing tenancy and start a new one with new joint tenants. This would be done by an Early Surrender. Again, both current joint tenants would need to agree and request this, and the LL would need to agree.
The new tenancy would, of course, then need the agreement of both new tenants (you and 'substitute') and the LL.