ending a joint tenancy agreement question

Comms69

trusaiyan wrote: »

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. - A criminal defence solicitor is SRA accredited. Why are you so determined not to name them so we can check where they specialise?

My points are correct, go ask a solicitor yourself those exact questions if you so feel it. - I don't need to. I know the law. A tenancy is NOT defined solely as possession (as you incorrectly think), it is the legal control of the property. - Yes legal possession. Doesn't mean you have to physically be there. 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. - Right. So they don't have to pay rent but can continue to live there...
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. - unlawfully? So it's a criminal matter? Call the police in that case... (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. - but they've been accepting her rent payment for months... I strongly believe it would be deemed by a court that a new agreement is in place because 1) they are accepting rent payments - why would that be a new agreement. she's been paying rent since the start... , 2) they have written that they accept she is a sole tenant and that the other tenant left - not what you said before , 3) they have not sent any letters asking her to vacate or used the courts to remove her which legally they could do. - nor are they obliged to

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 tenancy changes. the fixed term ends. The periodic begins. The TERMS which is what you are contesting remain the same.
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.
- Funnily enough nothing about the terms of the tenancy changing there. It's something that happens by law and is clearly defined

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/

On which note I'm out until you name the solicitor. Best of luck with the debating club

G_M

Comms69 wrote: »

On which note I'm out[STRIKE] until you name the solicitor. [/STRIKE]Best of luck with the debating club

Finally!
No point feeding further.

trusaiyan

I will not be providing the name of the solicitor as they may not wish to be named.

However, in a public post already on the net this situation has been confirmed by a prominent housing lawyer (Tessa Shepperson), who writes unequivocally (https://www.landlordlawblog.co.uk/2017/11/02/tenant-moves-legal-situation-regarding-remaining-tenants/):

"If she serves a tenants Notice to Quit, then this will end the tenancy completely. The situation regarding the remaining tenants will depend on whether they pay rent and if they do whether you accept it.

If they pay rent and you accept it, then a new tenancy will be created under s54(2) of the Law of Property Act 1925. This is the section which says that, although in most cases you need a written deed to create a ‘legal interest in land’ this is not the case for a tenancy with a term of three years or less where the tenants are in occupation and paying rent.

If you did not want the tenancy to continue you would have to start proceedings fairly soon and you would need to be careful about accepting any rent. These proceedings would be on the basis that they no longer have a tenancy.

If you decide to end the tenancy and evict them, then either you should not accept rent at all or payments must only be accepted on the basis that they are an occupation payment only and accepted without any intention to create a new tenancy.

It sounds to me though as if you would be happy to let the tenants stay."

This confirms what Shelter's solicitor said and the two solicitors that we used. There is a unilateral right to end a joint periodic tenancy, which is not dependant on whether one remains.
Once a valid NTQ is served and the notice period completed, the tenancy CATEGORICALLY ends in law, and then the landlord can either evict any remaining tenants through the courts or allow a new one to automatically arise (with her as the sole tenant) IF they accept rent payments off her and do not inform her that they are not being accepted with the intention of creating a new tenancy (or they can reject the payments altogether which would demonstrate they don't want her to remain).

I think this shows with the number of people wrong in this thread, that while it may be well intentioned, taking advice off laymen on the web could end in tears if people are not careful (such as listening to people like Comms, who unfortunately haven't got a clue what they are talking about). I do think some people should tone down the sarcasm and show a bit more modesty when they are so ignorant of the law and speaking like experts, when they are catastrophically wrong.

Have a great day