My tenants (a couple) have split up – Advice required

Hi Jo

Did Mr Tenant serve proper notice to you before he left? If not, he may still be technically liable for the rent on a joint and several basis. If he did, that would have terminated the tenancy.

Did you grant a new tenancy to Mrs tenant? If not, on what basis is she now occupying your property? If Mr Tenant ended the tenancy by serving notice then Mrs Tenant is no longer a tenant and you may be in a position to immediately apply to the Courts for a possession order as the section 21 procedure is not valid without a tenancy. However, Mrs tenant may be able to argue that you did give her a new tenancy depending on what you said to her, especially if you put it in writing. If it is deemed that a new tenancy was created then you should have served a section 21 (1) b notice and you will not be able to apply to the Courts for a possession order until at least 6 months have elapsed. Also, if you did grant a new tenancy to Mrs tenant then you should have dealt with the deposit protection refund as soon as the old tenancy was terminated.

If you dealt with Mr Tenant leaving with a notice of assignment and subsequently served Mrs Tenant a section 21 notice after the expiry of the existing tenancy agreement then the correct notice to serve would have been a section 21(4)a and the timing of that notice will be crucial.

As you can probably see, there are quite a few variables here so it's difficult for me to offer you any specific advise without further information as to exactly what happened.
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Hi,
I've been here as well. regardless of where you are now in the old or new contract get a section 21 delivered ASAP. If its a rolling contract then its just the 2 full months notice. if its a new one then its the end date of that one. - As already said if you issued a new contract after the chap left then you might well have to wait the 6 months.
If the person doesn't want to move out be prepared. - get a free download of the Accelerated Possession form - N5B - it asks for the AST dates so will explain the dates you have to work from - Once issued for £175 wait 2 months!. - Also be prepared for the next step which is the request for the courts to instruct a bailiff N325 £110 and wait 2 to 6 weeks. There is another form to promise the courts you delivered the section 21 but I cannot recall its reference number - Ahhgg.
Anyway good luck and shout if you want more info on entering detail on the forms - The N5B is easy enough but the N325 is old style and a pain!
Best of luck - Allan w

Jo, as you can see from Mark's comments (he's my brother by the way) it can be a minefield. My advice is talk to Landlord Action, details under the Legal section of this website.

If you decide to re-let the property take a look at our free guide, link below. Part of it explains how you can get legal fees insured and your rent paid every month on the due date, whether your tenant pays or not, for just 5% of rent. Given your awful experience in this case I suspect that in time you will see the value in that offer but if not, no worries, I'm sure our guidance on how to let your property with Rightmove advertising for just £5 will be of interest 🙂

Good luck by the way.
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Mark why are you spending so much time on this it is obviously another spoof?

Reply to the comment left by "Industry Observer " at "22/10/2013 - 18:19":

HAHAHA - is this sour grapes because you didn't get the answer you expected to your emails advising me to remove the spoof?

I can assure you that you really were the only person who expressed concerns and that I really did receive over 200 emails and comments on Social Networks from people who had enjoyed it and shared it with other landlords?

The bottom line is that it is impossible to please all the people all the time.

We are not a professional body, we are a Social Network for landlords. We facilitate the sharing of best practice but that should not prevent us from having a bit of light hearted fun from time to time.

So far this year you have left 2 comments saying words to the effect that "I will never read Property118 again". Each of these times when somebody has not shared the same opinion as you. Will you be going for a hat-trick?

I do value your comments I.O., you share some useful insights and tips but you must also realise that I will not always agree with everything you have to say. My advice back to you is that you really should try to lighten up a bit. Chill out and accept that your perceptions are your reality but other people perceptions will be different.

The above is a genuine Readers Question, I have the email and telephone number of Jo to prove it.

For those who were not party to the fun we had last night please see the link below and leave a comment - ENJOY 🙂
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Why not give Legal 4 Landlords a call on 01455 444414. They offer a free legal advice help line. Can't hurt!

I'll ignore the comments from Mark as I really do think the item was beneath P118 and unworthy of it. No need for me to lighten up my friend noone on this planet has a better sense of humour or likes a joke more than me. I just thought the item was out of place .

Now to this questiuon from Jo I must be missing something here but this sems painfully easy to me.

First he didn't even need to give notice, but wither way end of fixed term he can leave. So his liabilities end.

She carrries on periodic on her own and now has full liability as she would as a joint tenant anyway under J&S liability.

If she is in arrears take normal actions to recover the property and, if you can (unlikely) the arrears.

In terms of the deposit salutory lesson here for all P118 rreaders - ALWAYS specify on the deposit receipt given to tenants in exchange for the deposit, who has provided what proportions of it. Even for husband and wife or life long partners, specify equal shares or if not equal shares what proportion. Useful also to state whether it was all their own funds (Relevant Person).

The fixed term has ended so he is entitled to whatever proportion he can prove he provided.

I notice Jo has not responded to the questions asked about notice etc so I hope this is an indication that she has either resolved the problem, or put it into professional hands.

As has been alluded, it depends on whether VALID notice has been served by the departed tenant.

If we assume it has, then you would have done one of 3 things after that notice expired
1) Granted a new tenancy on purpose
2) Granted a new tenancy, perhaps by accepting rent
3) Treated remaining occupier as a trespasser.

if
(1) or (2) Then you are tied in for the duration of the tenancy or 6 months (whichever is longer) unless a section 8 ground applies AND (in the case on 1) the tenancy agreement says you can use the relevant ground.
if
(3) then you need to move quickly to evict to prevent the courts deciding that your non-action indicates an implied tenancy being created by estoppel.

Either way, (again, assuming he has given VALID notice) the joint tenancy has come to an end and the deposit needs to be returned to whomever the deposit was in the name of.

@ Dave Reaney

Assuming it was joint tenants, and nothing says it wasn't, then in no way can the tenant left behind ever be treated as a trespasser

Second the dearting tenant DID NOT need to give any notice. If he left at the end of the fixed term he is simply entitled to walk NO MATTER WHAT CLAUSES MAY BE IN THE AGREEMENT DEMANDING NOTICE, IF ANY. This is a long established (and irritating) preference of the OFT that has been supported many times in the easily influenced lower courts.

Third estoppel I don't think has anything to do with this matter. Estoppel in simple terms is a shield to prevent loss, not a sword to attack with and I fail to see how either party can be deemed estopped from doing anything in this case.

Reply to the comment left by "Dave Reaney" at "28/10/2013 - 22:17":

Having re-read the original post, I see it was mentioned but deposit. The departed tenant has not given valid notice. He can not do so during a fixed term, and on expiry of the fixed term the new SPT arises in the names of the original tenants - ie both!

I will assume that the section 21 was in both names & otherwise valid? In which case you carry on as if he was living there, in both the eviction process and rent recovery.

IF he now gives valid notice to quit in the joint SPT that will indeed confuse matters.

BTW, as I am sure you know, the section 21 notice does not end the tenancy nor oblige the tenants to leave.