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Ending a joint tenancy when a tenant leaves
Posted on 13/07/21 in Housing Matters
In this article, Charlie Howard, a senior adviser at Shelter, helps readers understand the rights and options of joint tenants when they would prefer to end the tenancy early.
Who is a joint tenant?
There are approximately eight million tenants in the UK. Many rent their homes jointly with another person, for example a partner or a friend. When their circumstances change, such as a relationship breakdown or someone finds a better job in another city and wants to move out, things can get complicated.
Not everyone who rents with other people is a joint tenant. A shared house could be occupied by a group of friends who rent their own individual rooms under sole tenancies. A tenant inviting another person to move in, with or without the landlord’s consent, does not mean that the tenancy becomes joint.
To find out who is a tenant, it is important to check the written tenancy agreement, if there is one. If the agreement with the landlord is not in writing, then whether the occupiers are joint tenants depends on the intention of all the parties. For example, emails or text messages proving that the landlord has always treated the occupiers as renting the property together could indicate that a joint tenancy exists.
Liability for rent
Each joint tenant has the right to occupy the whole property and is responsible for the whole rent, not just a share of it. This is called joint and several liability. Joint and several liability is an important consideration for anyone thinking about entering a joint tenancy, because the landlord could demand the whole sum owed from one person. The tenants might agree between themselves who is to occupy each room and how to split rent payments, but this agreement is not binding on the landlord.
A deposit for a joint tenancy is classed as one payment even if individual tenants have contributed their own share. Deductions for rent arrears and other costs can be made from the entire deposit.
More than four tenants
The maximum number of joint tenants is four, due to limits placed on legal interests in land by the Law of Property Act 1925. Where the tenancy agreement has more than four names on it, the additional occupiers are ‘beneficiaries’ as they hold their rights under a trust, with the main tenants as trustees.
Beneficiaries still have the protection of legislation, for example the Housing Act 1988 for most private tenancies. They are bound by the tenancy agreement they have signed, but they can have different rights and obligations when it comes to paying rent and ending the tenancy. They should seek specialist advice to establish their rights.
What happens if one joint tenant wants to leave?
A joint tenancy does not end when one joint tenant moves out of the property. If at least one of the joint tenants continues to live in the property as their only or principal home, the tenancy continues. The departing tenant can still be pursued for future rent arrears or costs due under the agreement. They still have the right to access the property.
The landlord and remaining tenants can't simply remove the outgoing tenant from an existing agreement. If the remaining joint tenants want to leave the property, they could consider their options for ending the tenancy.
Ending a periodic tenancy by giving notice
If the tenancy is periodic, any one of the joint tenants can serve a notice to quit (NTQ) ending the tenancy for everyone. Once a valid notice expires, none of the joint tenants has a right to occupy the property. This can leave the remaining joint tenants in a vulnerable position.
An NTQ must be in writing and the notice period must be at least:
- four weeks, or
- if the period of the tenancy is longer, equivalent to the period of the tenancy or licence
- six months if the tenancy is yearly periodic
A tenancy agreement might require the tenancy to give a longer notice.
The NTQ must expire on either the first day or the last day of a period of the tenancy. The period of the tenancy is not necessarily related to the rent payment date. Check the tenancy agreement to determine when the period of the tenancy starts and ends.
For a periodic tenancy that follows a fixed term, if the fixed term expired on the 6th day of the month, the monthly period would start on the 7th day and end on the 6th. In this example, a valid NTQ could end on the 6th or the 7th of the month.
For the landlord to end the joint tenancy, the rules are the same as ending a sole tenancy. The landlord must serve a valid notice on the tenants and obtain a court order. The notice requirements depend on the tenancy type.
A notice to quit cannot be used to end a fixed term tenancy.
Ending a fixed term tenancy with a break clause
A fixed term tenancy can be ended using a break clause, if the tenancy agreement contains one. The tenants must comply with the break clause conditions for it to take effect. One joint tenant cannot operate a break clause without the agreement of all joint tenants unless the agreement expressly allows it.
Surrender is an agreement to end the tenancy early. The landlord, along with all the joint tenants including the outgoing tenant, must agree to surrender. It is possible to agree to surrender the tenancy during the fixed term.
The tenants might have to pay a fee to surrender the tenancy. The fee must not exceed the loss incurred by the landlord. It should not be more than the loss of rental income, or the reasonable costs of the agent, such as marketing costs. if the tenants do not agree to pay the fee, the landlord can refuse to accept the surrender and the tenants will continue to be liable for the rent.
Implied surrender is an operation of law, where the conduct of the tenants and the landlord is unequivocal and indicates neither party wants to continue with the tenancy. An example of implied surrender is when all joint tenants leave, the landlord accepts the keys back and returns the deposit.
Surrender does not take place where the tenants:
- agree to surrender but decide to stay instead
- put the keys to the property in the letter box without prior agreement
If the landlord and tenants do not agree that a surrender has taken place, a court can decide on the evidence available.
In Housing Matters
Help with housing costs under Universal Credit for information about benefits following the departure of a joint tenant.
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