ending a joint tenancy agreement question

Comms69

trusaiyan wrote: »

☝️So by that measure the tenant has no legal right to end the joint tenancy (because you claim it subsists if one of them remains), even though this has been established as a matter of fact in the case law posted earlier in the thread...

Both positions cannot be true. Either the tenant has a legal right to end the joint tenancy or they do not.

I'm going to regret this...


The tenant (in this case it's two people, who are one tenant) can end the tenancy by 1: serving correct notice AND 2: providing vacant possession.


Either party can serve notice, as they are deemed to be one and the same legal entity. But the tenant (again two people) must vacate.


So you seem to think that the situation is: 2 people sign a joint contract, on the basis that they are both jointly liable for the obligations under it. Then one can simply walk away from those obligations?


The law is that notice isn't required from both people. Not that you can unilaterally walk away from your obligations and leave a mess in your wake.

Comms69

trusaiyan wrote: »

We have asked two separate solicitors what will happen exactly in this situation and await their responses. I will post the responses here for anyone interested.

Must be nice to have £400 to waste.


Just to clarify these solicitors are specialists in housing and tenancy law?

trusaiyan

Comms69 wrote: »

I'm going to regret this...


The tenant (in this case it's two people, who are one tenant) can end the tenancy by 1: serving correct notice AND 2: providing vacant possession.


Either party can serve notice, as they are deemed to be one and the same legal entity. But the tenant (again two people) must vacate.


So you seem to think that the situation is: 2 people sign a joint contract, on the basis that they are both jointly liable for the obligations under it. Then one can simply walk away from those obligations?


The law is that notice isn't required from both people. Not that you can unilaterally walk away from your obligations and leave a mess in your wake.

If that is true I will literally eat my hat.

As mentioned previously, that would therefore mean any joint tenant could be permanently trapped in a tenancy if the other joint tenant doesnt leave after giving notice.

That is fundametally ridiculous and must surely violate other human rights laws, so it cannot possibly be true, but we will see...

Yes of course they should be able to walk away from their obligations, AFTER THEY HAVE GIVEN A VALID NTQ WHICH SHOULD ALLOW THEM TO DO JUST THAT!!!

Otherwise the NTQ means nothing as the other tenant could be permanently trapped as a tenant by one of them not vacating, as was outlined by various judges in those rulings.

Comms69

trusaiyan wrote: »

If that is true I will literally eat my hat. - Add ketchup, it helps.

As mentioned previously, that would therefore mean any joint tenant could be permanently trapped in a tenancy if the other joint tenant doesnt leave after giving notice. - correct. That's why you don't sign JOINT contracts without understanding the implications.

That is fundametally ridiculous and must surely violate other human rights laws, so it cannot possibly be true, but we will see... - Oh please stop it, there's no human rights violations for adults agreeing to be jointly liable for what is in effect a debt.

Yes of course they should be able to walk away from their obligations, AFTER THEY HAVE GIVEN A VALID NTQ WHICH SHOULD ALLOW THEM TO DO JUST THAT!!! - So you think if you borrowed £10k with you partner and then decided you didn't fancy paying it, you could just relinquish your obligations?

Otherwise the NTQ means nothing as the other tenant could be permanently trapped as a tenant by one of them not vacating, as was outlined by various judges in those rulings.

May I suggest if you aren't happy with the situation that you write to your local MP (after Dec 13th ofcourse) petitioning them to change the law.

trusaiyan

correct. That's why you don't sign JOINT contracts without understanding the implications.

I never anticipated that the situation as claimed by multiple people in this thread could possibly arise. I and my friend always thought a joint tenant could end the tenancy for both of them if one desired after the fixed term. It isn't mentioned in any legal websites at all that a joint tenant has no legal right to end the tenancy if one of the tenants simply remains, so if it is true as you claim then why is it not stated anywhere (it's a fairly fundamental point don't you think)? It's not in the tenancy agreement either. It doesn't state anywhere on the internet that the tenancy would subsist after the NQT is served.

To the contrary many websites state a single tenant can legally terminate the tenancy for both of them by serving NTQ (Shelter, CAB, Gov briefing paper, various legal sites etc). Granted they don't explicitly state what happens if one remains. However, I believe the reason the claim that it can't be ended if one remains is not mentioned anywhere on the web (other than this thread) because it is false, but we will see.

Oh please stop it, there's no human rights violations for adults agreeing to be jointly liable for what is in effect a debt.

Fairly certain it would breach the human rights act, as we are not talking about simply a debt. Forcing a tenant to remain a tenant indefinitely because of another tenants wishes even after they have served a valid NTQ is completely unreasonable and immoral. No normal person would think that is morally sound. They are on a periodic tenancy (month to month) and should have no obligation to remain past that if they so desire.

So you think if you borrowed £10k with you partner and then decided you didn't fancy paying it, you could just relinquish your obligations?

That's a completely separate obligation and not related or relevant to a tenancy. When both tenants signed the agreement, it was signed with the expectation that it could be ended if one of them no longer wanted to live with the other person. The vast majority of the public would not think it is reasonable that they could be permanently trapped even AFTER the fixed term ends (esp on a periodic month to month tenancy) if one tenant doesn't want to leave. Your essentially claiming that a tenant could remain a tenant for another 10 years if the other joint tenant never left (or however long the AST can last for). This is outrageous and couldn't for a second be true, but the responses will land tomorrow so we will find out for definite then.

May I suggest if you aren't happy with the situation that you write to your local MP (after Dec 13th ofcourse) petitioning them to change the law.

Yes absolutely, I am a member of a political party and I'm politically active. MPs are legislators afterall so it is, in my view, completely normal to want to live in a fairer and more just society, of which reforming law constitutes a huge requirement to bring this about. As you are aware, English property laws are disastrous in many regards (leasehold, tenants rights, Lack of HIPs, overly restrictive covenants, uncapped service charges, warranties etc etc). It's an anti-consumer, opaque and extremely dangerous mess. I therefore want vast swathes of property laws changed for the better, as should others who want to see a fairer Britain.

Anyway, I will post the responses tomorrow. Hopefully it hasn't been a waste of money

Comms69

trusaiyan wrote: »

I never anticipated that the situation as claimed by multiple people in this thread could possibly arise. I and my friend always thought a joint tenant could end the tenancy for both of them if one desired after the fixed term. It isn't mentioned in any legal websites at all that a joint tenant has no legal right to end the tenancy if one of the tenants simply remains, so if it is true as you claim then why is it not stated anywhere (it's a fairly fundamental point don't you think)? It's not in the tenancy agreement either. It doesn't state anywhere on the internet that the tenancy would subsist after the NQT is served. - I've explained this numerous times, you aren't taking it in. A tenancy doesn't end because of a piece of paper; it ends when you hand back possession.

To the contrary many websites state a single tenant can legally terminate the tenancy for both of them by serving NTQ (Shelter, CAB, Gov briefing paper, various legal sites etc). - and handing back possession. Granted they don't explicitly state what happens if one remains. However, I believe the reason the claim that it can't be ended if one remains is not mentioned anywhere on the web (other than this thread) because it is false, but we will see.



Fairly certain it would breach the human rights act - no it's not. That's like saying 'data protection'; there is no provision for this in the HRA. , as we are not talking about simply a debt. Forcing a tenant to remain a tenant indefinitely because of another tenants wishes even after they have served a valid NTQ is completely unreasonable and immoral. No normal person would think that is morally sound. They are on a periodic tenancy (month to month) and should have no obligation to remain past that if they so desire. - they have no obligation to remain there, just remain liable for what they voluntarily agreed to.



That's a completely separate obligation and not related or relevant to a tenancy. When both tenants signed the agreement, it was signed with the expectation that it could be ended if one of them no longer wanted to live with the other person. - show me where that is said in writing? The vast majority of the public would not think it is reasonable that they could be permanently trapped even AFTER the fixed term ends (esp on a periodic month to month tenancy) if one tenant doesn't want to leave. Your essentially claiming that a tenant could remain a tenant for another 10 years if the other joint tenant never left (or however long the AST can last for). This is outrageous and couldn't for a second be true, but the responses will land tomorrow so we will find out for definite then. - it is true.



Yes absolutely, I am a member of a political party and I'm politically active. MPs are legislators afterall so it is, in my view, completely normal to want to live in a fairer and more just society, of which reforming law constitutes a huge requirement to bring this about. As you are aware, English property laws are disastrous in many regards (leasehold, tenants rights, Lack of HIPs, overly restrictive covenants, uncapped service charges, warranties etc etc). It's an anti-consumer, opaque and extremely dangerous mess. I therefore want vast swathes of property laws changed for the better, as should others who want to see a fairer Britain. - I would say that English tenancy law is very generous. (depends on what you mean by 'fairer'; generally that concept involves more government; I'm quite libertarian)

Anyway, I will post the responses tomorrow. Hopefully it hasn't been a waste of money

Look forward to it. Can you include the sources as well

trusaiyan

We've had the first response off a solicitor:

"If the tenancy agreement permits a joint tenant can serve a NTQ and/or under the common law when you serve a NTQ, then the tenancy effectively ends and there will be no longer any tenancy. Further if your ex wants to stay at the property she will then need to draw up a new agreement with the landlord which has her NAME only on the agreement.

Given you served a notice to quit the joint tenancy ended. This is because the law states that where a NTQ is served thus a tenant should not be forced to remain a tenant against their will.

Therefore I suggest you contact both the landlord and agency to iron out this situation, because it appears they are both asleep on this matter. They need to draw up a new agreement with your ex if she wants to remain in the property.

Please note the notice to quit effectively ended the tenancy therefore the landlord can now take steps to repossess the property. Therefore she needs to speak to the landlord to draw up a new agreement. The law that governs the position is the Supreme Court case of Sims v Dacorum Borough Council [2014] UKSC 63."

So as I predicted you are wrong and the advice confirms what Shelter have said and others, so it seems these things are true (my interpretation is below):

• A joint tenancy can be ended unilaterally by a tenant serving a NTQ.
• At the end of the notice period, whether they remain or not, the joint tenancy ends in law, and the landlord can then begin repossession proceedings or agree a new agreement with the remaining tenant.
• Whatever tenancy is in place after the notice period is CATEGORICALLY not the same tenancy as before, as that tenancy ended by the NTQ.
• Case law has confirmed a joint tenant has a legal right to do this unilaterally.
• A tenancy is NOT defined as the period to which the property is in possession; it is defined as the period the legal agreement to control the property was in place and can end even if one remains in a property.
• There is no requirement for vacating the property for a tenancy to have 'ended' (under some circumstances the tenancy can end but the tenant remains in the property, and if so they are either on a new tenancy agreement or illegally trespassing).

We await the other solicitors response and we have asked about the Double rent issue too.

[Deleted User]

trusaiyan wrote: »

We've had the first response off a solicitor:

"If the tenancy agreement permits a joint tenant can serve a NTQ and/or under the common law when you serve a NTQ, then the tenancy effectively ends and there will be no longer any tenancy. Further if your ex wants to stay at the property she will then need to draw up a new agreement with the landlord which has her NAME only on the agreement.

Given you served a notice to quit the joint tenancy ended. This is because the law states that where a NTQ is served thus a tenant should not be forced to remain a tenant against their will.

Therefore I suggest you contact both the landlord and agency to iron out this situation, because it appears they are both asleep on this matter. They need to draw up a new agreement with your ex if she wants to remain in the property.

Please note the notice to quit effectively ended the tenancy therefore the landlord can now take steps to repossess the property. Therefore she needs to speak to the landlord to draw up a new agreement. The law that governs the position is the Supreme Court case of Sims v Dacorum Borough Council [2014] UKSC 63."

So as I predicted you are wrong and the advice confirms what Shelter have said and others, so it seems these things are true (my interpretation is below):

• A joint tenancy can be ended unilaterally by a tenant serving a NTQ.
• At the end of the notice period, whether they remain or not, the joint tenancy ends in law, and the landlord can then begin repossession proceedings or agree a new agreement with the remaining tenant.
• Whatever tenancy is in place after the notice period is CATEGORICALLY not the same tenancy as before, as that tenancy ended by the NTQ.
• Case law has confirmed a joint tenant has a legal right to do this unilaterally.
• A tenancy is NOT defined as the period to which the property is in possession; it is defined as the period the legal agreement to control the property was in place and can end even if one remains in a property.
• There is no requirement for vacating the property for a tenancy to have 'ended' (under some circumstances the tenancy can end but the tenant remains in the property, and if so they are either on a new tenancy agreement or illegally trespassing).

We await the other solicitors response and we have asked about the Double rent issue too.

That solicitor hasn't mentioned anything about the Distress for Rent Act. Doesn't he know about it and holding over? Poor show if he's meant to be a solicitor who specialises in tenancy law. He's also failed to mention that your friend remains liable for the cost of evicting the ex because if she won't go and won't sign a new tenancy agreement it's going to take a court order and possibly bailiffs to remove her.

I note that the solicitor has confirmed that a new tenancy hasn't been automatically created which is something you seemed to think would happen.

Comms69

trusaiyan wrote: »

We've had the first response off a solicitor:

"If the tenancy agreement permits a joint tenant can serve a NTQ and/or under the common law when you serve a NTQ, then the tenancy effectively ends and there will be no longer any tenancy. Further if your ex wants to stay at the property she will then need to draw up a new agreement with the landlord which has her NAME only on the agreement.

Given you served a notice to quit the joint tenancy ended. This is because the law states that where a NTQ is served thus a tenant should not be forced to remain a tenant against their will.

Therefore I suggest you contact both the landlord and agency to iron out this situation, because it appears they are both asleep on this matter. They need to draw up a new agreement with your ex if she wants to remain in the property.

Please note the notice to quit effectively ended the tenancy therefore the landlord can now take steps to repossess the property. Therefore she needs to speak to the landlord to draw up a new agreement. The law that governs the position is the Supreme Court case of Sims v Dacorum Borough Council [2014] UKSC 63."



- sorry is this 'solicitor' (I did ask you to source it) just suggest carrying out an illegal eviction?
So as I predicted you are wrong - according to someone you refuse to name. and the advice confirms what Shelter have said and others, so it seems these things are true (my interpretation is below):

• A joint tenancy can be ended unilaterally by a tenant serving a NTQ. - By your 'solicitors' interpretation, a NTQ can end a tenancy, without providing vacant possession. I'll just send a NTQ to my landlord, not move out, but also not be liable for rent.
• At the end of the notice period, whether they remain or not, the joint tenancy ends in law, and the landlord can then begin repossession proceedings or agree a new agreement with the remaining tenant. - Whether they leave or not, they are no longer bound by the tenancy?..... really?
• Whatever tenancy is in place after the notice period is CATEGORICALLY not the same tenancy as before, as that tenancy ended by the NTQ. - So it is an undefined tenancy, so the rent is what exactly?.... you're talking nonsense you must realise that
• Case law has confirmed a joint tenant has a legal right to do this unilaterally. - case law confirms that only one joint tenant is required to serve notice, to end the tenancy for all of them. This is NOT what you think it means.
• A tenancy is NOT defined as the period to which the property is in possession - ALL tenancies are defined by periods of possession. ; it is defined as the period the legal agreement to control the property was in place and can end even if one remains in a property. - except a legal tenancy requires no legal written agreement?
• There is no requirement for vacating the property for a tenancy to have 'ended' (under some circumstances the tenancy can end but the tenant remains in the property, and if so they are either on a new tenancy agreement or illegally trespassing). - a tenant cannot trespass.

We await the other solicitors response and we have asked about the Double rent issue too.

Provide the source. Which solicitor was this. Name them so I can look them up on the register.

trusaiyan

Comms69: I have posted what the solicitor wrote (yes SRA regulated), and furthermore Shelters solicitors said the same things to me and told me this was uncontroversial as it has all been established in case law.

My points are correct, go ask a solicitor yourself those exact questions if you so feel it. A tenancy is NOT defined solely as possession (as you incorrectly think), it is the legal control of the property. If the tenancy ends (i.e the legal control) because a valid NTQ is served, it is FALSE to say the tenancy 'continued' because it wasn't vacated. It did not, the tenancy legally ended whether they remain or not.
If she or the other tenant remains in the property, then they are doing this unlawfully UNLESS it can be deeemed that she came to a new agreement informally or formally. (This part is my interpretation) If the LL/EA are accepting her rent payments, then it would generally be deemed a new tenancy has started. I strongly believe it would be deemed by a court that a new agreement is in place because 1) they are accepting rent payments, 2) they have written that they accept she is a sole tenant and that the other tenant left, 3) they have not sent any letters asking her to vacate or used the courts to remove her which legally they could do.

As further evidence that a tenancy can end without giving back possession, this occurs when a fixed term comes to an end (AST) and then a new tenancy aises on perdiodic bases. Technically, the tenancy DOES end when a fixed term is over as Tessa Shepperson states as a senior housing Solicitor (https://blog.openrent.co.uk/what-happens-when-a-tenancys-fixed-term-ends/):

The situation is different if the tenants remain living at the property. Although, save where there is a contractual periodic tenancy set up (see below on this), the tenancy will still end at midnight on the last day of the fixed term.

If the tenants remain in occupation, then in most cases, if no new fixed term tenancy or ‘renewal’ has been signed, then as soon as the fixed term tenancy has ended, a new ‘periodic’ tenancy will be created automatically in its place.

Unless or until a new fixed term tenancy or ‘renewal’ document is signed, the tenancy will then continue on this periodic basis.

There is nothing wrong with this. Some tenancies have run on for years on a periodic basis. You don’t have to give tenants a new fixed term or renewal.


A really good overview of the law on this issue is here by Justin Bates (very well known property Barrister) commenting on the Sims v Dacorum Borough Council [2014] :


The Supreme Court has held that the rule in LB Hammersmith and Fulham v Monk [1992] 1 AC 478; (1992) 24 HLR 360 is not incompatible with Art 8 or A1/P1 of the ECHR, such that (absent a term of the tenancy to the contrary) a notice to quit served by one joint tenant determines the tenancy; the rights of the remaining occupiers are adequately protected by the possibility of raising a proportionality defence.

In the pre-Human Rights Act 1998 case of LB Hammersmith and Fulham v Monk [1992] 1 AC 478; (1992) 24 HLR 360, the House of Lords held that – unless the tenancy agreement provides otherwise – a notice to quit given by one joint tenant without the concurrence of any other is effective to determine a periodic tenancy, with the result that the landlord obtains an unqualified right to possession. In LB Harrow v Qazi [2003] UKHL 43; [2004] 1 AC 983; [2003] HLR 75 (a joint tenancy/notice to quit case), the House of Lords held that there was no violation of Art 8 where the law affords an unqualified right to possession on proof that the tenancy had been terminated. In later cases, the House of Lords likewise resisted attempts to use Art 8 as a defence to possession proceedings by local authorities: see Lambeth LBC v Kay [2006] UKHL 10; [2006] 2 AC 465; [2006] HLR 22; Birmingham CC v Doherty [2008] UKHL 57, [2009] 1 AC 367, [2008] HLR 45.

The appeal was dismissed. The rule in Monk was not incompatible with A1/P1. It had always been the case that the tenancy could be determined by his wife giving notice to quit and Mr Sims had therefore lost his tenancy in circumstances and in a manner which was specifically provided for in the agreement. The terms of the tenancy (and the common law rule in Monk) were not unreasonable; if Monk were reversed then one tenant could be forced to remain a tenant against her will or a landlord left with one tenant where he previously had two. There was also no violation of Art 8. Mr Sims had been entitled to raise a proportionality defence in the county court and had done so. The Deputy District Judge had considered all relevant factors and found it proportionate to grant a possession order. The decision in Buckland v UK did not assist Mr Sims; it was only authority for the proposition that an occupier needed to have the opportunity to argue that no possession order should be made.


http://ukscblog.com/case-comment-sims-v-dacorum-borough-council-2014-uksc-63/