Permitted occupier confusion

stardust09

G_M wrote: »

Please confirm and complete this summary:

* you and 3 other people have a joint tenancy of 6 months, commencing 4 months ago on 2/09/2016)
* One of those joint tenants has left but remains a joint tenant No. They gave two months' written notice to the letting agency, who said that as long as a replacement was found for them then they would not be liable for the rent (this is standard practice for our joint tenancy as the agency argue that as we're all on a joint contract then if anyone defaults we are all liable for that person's rent payment. That way, they get their money regardless).

* The joint tenancy has a rent of £1440 per month. You pay all of this except for £360 which is paid separately by one of the other remaining joint tenants

* A 'Permitted Occupier' moved in on 8/11/2016.
* this PO was found by us (we have to source our own replacement tenants if anyone leaves)
* You have consented to the PO's occupation (since you have taken no steps to evict!) - ok.
* this PO has paid a deposit to the LL/agent - no, the deposit was paid to the departing tenant and a letter provided to the letting agency to this effect. This is what the letting agency insist upon as they don't want to handle the deposits.
* the PO does pay rent to the you.
* you (all the joint tenants) have paid a £440 deposit each which is protected

Legal points:
1) Since there is a valid tenancy, the LL/agent cannot give consent for the PO to move in - only you can do this
2) You remain fully responsible for all the rent shown on the tenancy agreement (as do all the other named joint tenants including the one who has left)
3) the deposit you paid when the tenancy was created remains held by the LL/agent (presumably protected in a deposit scheme) - anything that was paid to the joint tenant who left is simply a side agreement between you and him. Nothing to do with the LL/agent.

What do you want to happen?
* To get rid of this PO?
* To get him added to the tenancy agreement?
* To get him to start paying you a % of the total rent? - the PO already pays all their rent and share of bills.

I want the PO added to the next tenancy agreement, when it's due. In the meantime, all I want to know is that if the PO decides they want to leave, do they have to give any notice (if so, how much) or can they just walk with no repercussions?

Thanks for your comprehensive reply.

stardust09

Pixie5740 wrote: »

The whole set up sounds like a cluster!!!! to be honest. Tenants with joint fixed term contracts coming and going as they please, deposits being given to the outgoing tenant, deeds of variations not being drawn up.

What happens with the last tenants move out? Are they going to have to cover the cost of damage caused by all tenants who have ever lived there? Not that they will definitely receive anything back unless the lead tenant whose name the deposit was registered under is still living in the property at that time.

I agree with all of the above! The new tenant is taking on the risk that they could lose their deposit due to damage caused by the previous tenant and would have no rights to say, "I'm knocking £x off because of a carpet stain, or whatever".

I am the lead tenant. And I want to leave! That is going to create numerous problems, I'm guessing. What the letting agency should have done is give us separate contracts but by putting us on a joint one, it protects their financial interests. Renting sucks!

Pixie5740

Yes the PO could walk away after giving "reasonable" notice because (s)he is not a tenant. The tenants i.e. those named on the tenancy agreement each have joint and several liability for the total rent (£1,440). There's no such thing legally as "your share" or "their share" of the rent.

If the PO did leave how would you return his/her deposit?

stardust09

Miss_Samantha wrote: »

This is one of the situations that are such an inextricable mess, combined with an incompetent (at best) or crooked (at worst) agent that IMHO the best piece of advice for a tenant is: Leave ASAP and never look back.

And worryingly, this practice is carried out by a branch of a national chain... I would go with incompetent and money-grabbing. This whole area needs serious regulation, especially given the changing nature of renting (e.g. more people having to house share until they're ancient).

stardust09

Pixie5740 wrote: »

Yes the PO could walk away after giving "reasonable" notice because (s)he is not a tenant. The tenants i.e. those named on the tenancy agreement each have joint and several liability for the total rent (£1,440). There's no such thing legally as "your share" or "their share" of the rent.

If the PO did leave how would you return his/her deposit?

The PO would not get their deposit back until a new person was found to replace them. That person would then transfer the money to the departed PO.

theartfullodger

Expecting a letting agent, especially a chain, to understand landlord/tenant law or do do things correctly is likely to lead to disappointment, tears & financial problems.

The agent is the agent of the landlord, works for landlord (landlord may also be p*ss*d off): Agent does not work for or represent tenants.

There are good agents, I have one!

stardust09

Just found this assignment section in the tenancy agreement, which reflects the above points:

12 Assignment

12.1 Not to assign, sublet, otherwise part with possession of the Property or let any other
person live at the Property without the prior written consent of the Landlord which
cannot be unreasonably withheld and must be given within a reasonable time.

12.2 Should the Landlord agree to an assignment of the tenancy, the new Tenant and the
outgoing Tenant will settle the issue of the Deposit between themselves. The
outgoing Tenant agrees that the Deposit registration is amended into the name of
the new Tenant and accepts they have no further claim over the Deposit originally
paid in respect of the tenancy. Likewise,

G_M

An individual joint tenant cannot give notice during the fixed term of a joint tenancy.

When the departing tenant left, one of 3 things may have happened (legally speaking):

1) the tenancy ended. This could only happen if ALL the joint tenants asked for an Early Surrender of the tenancy and the LL agreed. The deposit should then be returned by the LL, and a new tenancy created.

It seems this did not happen.

2) the tenancy did not end. Irrespective of any so-called agreement with the agent/LL, since the tenancy continues, the departing tenant remains a joint tenant with all the liability that goes with that. The payment of deposit by 'PO'' to departing tenant is just a financial freebie from one individual to another and is unconnected to the tenancy.

This may well be what happened here.

3) The departing tenant's liability was 'Assigned' to a new incoming tenant. A Deed of Assignment should be executed, and signed by ALL tenants (departing, remaining, and new) AND the agent/LL. The existing tenancy continues (but with a new name added). So the LL keeps the existing deposit.

This may be what the LL/agent was attempting to achieve here (though without undertaking the proper procedure or paperwork) though the agent's description of the newbie as a 'PO' suggests otherwise. Whether a court (in the case of a legal dispute) would accept that this happened is uncertain.


So what are the new occupant's rights?

* if 2) above occurred, then the PO is your lodger (and the departing tenant is still a joint tenant). You can evict the PO whenever you want (giving 'reasonable' notice) and he can leave whenever he wants ('reasonable' notice). Since the PO has not paid you a deposit, you do not have to return it to him. He may have a claim against the departed tenant for the freebie he gave him! Similarly since he PO did not pay the LL a deposit, the LL does not have to return it.

* if 3) above occurred, then the PO is not a Permitted Occupier, he is now a joint Tenant, with the same rights and responsibilities as the rest of you.

Way foward:

* Due to the uncertain legal position, I would not recommend rocking the boat or testing the legal position

* Your 6 month tenancy ends in 2 months (1/3/17). Is the PO likely to want to leave before then? Since you chose him, and want him to stay, I would do/say nothing till end Feb, and then either
- all leave and move somewhere better managed or
- negotiate a new tenancy with the LL/agent, including him as a joint tenant

* in future, if a joint tenant wiches to leave, I would ensure things are done better (see 3) above!). Here is a sample Deed of Assignment you could give your LL/agent. Without a formal Assignment, do not informally pass deposits between individuals!

* If the PO does decide to leave before 1/3/17, you could try demanding he continue to pay rent till 1/3/17 on the basis that he's a joint tenant (3 above) but this would be hard to prove. Or you could simply let him go, pay the extra (£360?) rent yourselves for a month or 2, and suggest he find the departed tenant to try to reclaim the freebie he paid him (his 'deposit')!

stardust09

Thanks, G_M, that was a really helpful reply. To be honest, I think I'm going to be the one leaving at the end of the 6 month tenancy. I am getting increasingly unhappy with the set-up and worry about receiving a financial hit at some point. It is a risky and precarious way to live.