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Staying in the home when a joint tenant leaves
Posted on 11/08/21 in Housing Matters
In this article, Charlie Howard, a senior adviser at Shelter, explains the rights and options of joint tenants to stay in their home when a joint tenant leaves, including solutions involving the courts.
Assigning the tenancy
When a joint tenant leaves, they might want to end all ties with their tenancy so they are not chased for rent or other costs in the future. Assignment is a way for a tenant to transfer their tenancy to someone else. It might be possible for the departing tenant to assign the tenancy to the remaining tenant. This depends on the type of tenancy agreement and terms in the agreement.
Joint tenancies can be assigned but are subject to the statutory rules for the tenancy type.
If the tenancy is a secure, flexible, or introductory, assignment is not available. For assured and assured shorthold tenancies, the tenants must check their tenancy agreement. If the agreement says nothing about assignment, then the landlord must consent and can withhold their consent for any reason.
Assignment is allowed if the agreement allows it without consent, but this is rare. If the agreement states that the tenant can assign with the landlord’s consent, the consent should not be unreasonably withheld.
If the agreement forbids assignment or if the tenant assigns without the landlord’s consent where it is required, the remaining tenant is in a vulnerable position as the tenancy has been breached and the landlord could issue possession proceedings.
For regulated tenancies in general, the right to assign is governed by the terms in the tenancy and requires the landlord’s consent. For a protected shorthold, it is not possible to assign the tenancy.
For an assignment to be valid, it must be made by deed. A deed is a written document that is signed as a deed and witnessed. An attempt to assign without satisfying all the formalities of a deed could be effective as an equitable assignment. The tenants should seek specialist legal advice if they wish to assign by deed.
Signing a new agreement
The remaining tenant could agree with the landlord that the current tenancy is terminated, to be replaced with a new agreement with the remaining tenant. If the tenancy is still within the fixed term, it is likely that the departing tenant will have to consent to the termination of the tenancy.
It is vital the tenant ensures that the landlord will offer another tenancy, signing the contract before terminating the current tenancy.
Finding a replacement tenant
If the landlord and all tenants agree, a tenant could be replaced on the tenancy agreement. This could happen where one joint tenant wants to leave, and the landlord agrees they can find someone to take over their room.
This creates a new contract, and the original joint tenancy is surrendered by operation of law. Without agreement of all parties, a replacement tenant will not automatically become a joint tenant. They could instead be a subtenant or licensee of the existing tenants. The outgoing tenant remains liable for all the obligations under the agreement until the joint tenancy is ended.
A landlord or agent could charge a fee for a replacement tenant. The fee is capped under the Tenant Fees Act 2019 at £50, unless the landlord or agent’s reasonable costs are greater.
Solutions involving the courts
Matrimonial law, family law and the Children Act 1989 give the courts powers to transfer one joint tenant’s interest to the other. The remaining tenant can make an urgent application to court for an injunction to stop a joint tenant from serving notice to quit before the transfer of tenancy can take place.
The court has the power to make an occupation order in favour of one joint tenant, excluding another joint tenant from the property on a short-term basis while longer term housing options are explored.
If the tenancy is periodic, the departing tenant could end the tenancy without the agreement of other tenants. In some limited circumstances, a court could make an injunction order to prevent a notice being served.
Where an application is made for a tenancy transfer under the Family Law Act 1996, it may be possible for an order to be obtained to prevent the departing from serving a notice to quit to end the tenancy. The same approach could be taken when an order has been made under the Children Act 1989, for couples with children. However, this is a temporary solution, used for a short time to protect the tenancy while longer-term options are explored. The departing tenant and the landlord could be held in contempt of court if they served a notice in breach of the order, but the tenancy still ends.
A family law solicitor can advise about applying for an injunction.
The court can make an occupation order under the Family Law Act 1996 setting out who can live at the property or ordering one of the joint tenant cohabitants to leave. Occupation orders are available to joint tenants, joint licensees and their partners.
Occupation orders are orders made by the courts to enforce, declare, or restrict rights to occupy the home. They are only a short-term solution and will not affect what happens to the property in the final settlement. Occupation orders can be granted under a number of different sections of the Family Law Act 1996. The tenant should seek specialist advice about which provisions apply to their situation.
In the case of domestic abuse, it is possible to get a court order banning the abuser from the property. This ideally needs legal advice and assistance, as it is a serious step. It is not a permanent solution and may also require an injunction to stop the termination of the joint tenancy.
Transfer of tenancy
A court can order that a tenancy is transferred from a joint tenancy into a sole tenancy.
Where the tenants are married, the court can order that the tenancy is assigned to the remaining tenant under the Matrimonial Causes Act 1973. This can happen in conjunction with divorce, judicial separation, dissolution of a civil partnership or nullity proceedings. The order can only be made where a tenancy can be assigned.
Where the tenants are not married but do have children under 18 (or where the tenants are married or in a civil partnership but are not divorcing), an application can be made to transfer the tenancy to one of the parents for the benefit of the children. This is under the Children Act 1989.
For tenants who are cohabiting (married or unmarried, with or without children), the tenant can apply for a transfer of tenancy through the court under the Family Law Act 1996.
A family law solicitor can advise on solutions involving the courts.
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