Problems with a joint tenancy and one wants to stay?

by Readers Question

9:51 AM, 23rd May 2016
About 2 years ago

Problems with a joint tenancy and one wants to stay?

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Problems with a joint tenancy and one wants to stay?

Has anyone else had a problem with this situation? We let a three bed property on one AST naming the three tenants and the full rental price. third

The problem we now have is that two of the tenants want to leave and have given their notice, but the third person wants to stay, and is insisting that as her share of the rent (agreed between themselves) is only a third of the total rent – that is all she has to pay going forward!

She says she’s taken legal advice and they told her that is correct.

Has anyone any advice or info?

Linda



Comments

Gary Nock

10:15 AM, 23rd May 2016
About 2 years ago

Hi Linda

1. Check the AST. It should say that tenants are jointly and severally liable for the rent. If it doesn't ( which is unusual) then the tenant may have a case.

2. In cases like this particularly if a new tenant joins the tenancy do a complete new tenancy. AST, Deposit Protection and Inventory. This prevents any issues at tenancy end when the first two tenants argue that it was the new tenant who did any damage etc. And it keeps any rent insurance guarantee up to date.

Mark Alexander

10:58 AM, 23rd May 2016
About 2 years ago

Hi Linda

My understanding is that if this really is a joint tenancy that if any one on the joint tenants serves notice it ends the tenancy for all tenants.

I suspect your tenants claims of having obtained legal advice are fictitious.

Did you use the services of a letting agent and if so what have they said?

if you didn't use an agent you may need to consult a lawyer, I suggest Cotswold Barristers who offer a free 15 minute telephone consultation for Property118 members. They have a barrister there called Charles King who is particularly hot on tenancy law so I'd ask to arrange a teleconference with him if I were you.Please see http://www.property118.com/member/?id=3968

Also ask him about "mesne profits". I always get a bit confused about when this applies but if my memory is correct and it does apply in this situation it could mean that you can claim double rent from the tenant(s) that remain in-site after the other tenants notice to quit has expired.
.

Mandy Thomson

13:02 PM, 23rd May 2016
About 2 years ago

Gary and Mark are right. Joint tenants are normally jointly and severally liable for rent payments, and can jointly or severally end the tenancy, so one tenant can give notice which has the effect of ending the tenancy for all of them, provided they all give vacant possession.

Housing solicitor Tessa Shepperson has written a piece about joint tenants, where one wants to leave and another doesn't and claiming mesne profit (not rent as such) from the remaining tenant if a new tenancy agreement hasn't been made, but they still remain at the property.

However, while she states the original Act, the Distress for Rent Act 1737, allows for collecting double the rent, she goes on to say that she can't be sure this wouldn't create a new tenancy, as it would be under different terms from the original agreement (I personally couldn't see most judges accepting double rent as mesne profit).

You can read her blog entry here: http://www.landlordlawblog.co.uk/2016/03/05/can-one-joint-tenants-stay-without-creating-tenancy-seeking-new-sharer/

I would personally want to steer clear of anyone whose first resort is to threaten legal action. Going by the facts as presented, I would not be inclined to give this person a new tenancy, even if she can find others to share the flat.

Mike W

17:43 PM, 23rd May 2016
About 2 years ago

As a student landlord in Scotland I have to deal with this issue a lot on joint leases. But I have never had a problem as the lease terminates every year and I provide new leases if any want to stay on. During the year if one wants to leave (EG they drop out of uni) then as long as they can find someone who I and the other joint tenants believe is ok they we just have a lease amendment which all parties sign.
So I read with interest the comment that just one tenant on a joint lease can end the tenancy. Mmm really? That could cause some serious problems to those who did not wish the tenancy to end surely?
Any comments?

Mandy Thomson

18:57 PM, 23rd May 2016
About 2 years ago

Reply to the comment left by "Mike W" at "23/05/2016 - 17:43":

It does seem counter intuitive, because if a property is being SOLD, then normally all the proprietors (owners) would sign the transfer (unless there was a death, power of attorney etc). However, when the property is rented, the law, at least in England, is different as the joint tenants on the same rental agreement are regarded as one single tenant http://www.landlordlawblog.co.uk/2011/04/11/tenants-legal-help-five-things-about-joint-tenants/

Romain Garcin

18:57 PM, 23rd May 2016
About 2 years ago

Reply to the comment left by "Mandy Thomson" at "23/05/2016 - 13:02":

The risk of creating a new tenancy exists when payment is demanded whilst the (ex-)tenant is still in occupation.
The risk is greater if payment is demanded in advance.

This does not depend on whether the landlord claims 'double rent'.

Mandy Thomson

19:02 PM, 23rd May 2016
About 2 years ago

Reply to the comment left by "Romain Garcin" at "23/05/2016 - 18:57":

So is there anything a landlord could do to mitigate that? For example, if the landlord simply demanded enough mesne profit to cover his actual costs of running the property (e.g. mortgage, insurance, maintenance etc), is a judge likely to look upon the arrangement more favourably, if the landlord can demonstrate that he would struggle to meet those expenses without some money being paid?

Romain Garcin

19:40 PM, 23rd May 2016
About 2 years ago

Reply to the comment left by "Mandy Thomson" at "23/05/2016 - 19:02":

Either demand the money in arrears, making clear that payment are mesne profits or, better, wait until the ex-tenant has vacated.

Mesne profits is compensation that trespassers are liable for. This should therefore only last for a relatively short time.

If the landlord does not take any action to evict and continues to demand mesne profits, I think a court will at some point conclude that the occupant is not in fact a trespasser but a tenant.

Chris Antony

3:58 AM, 24th May 2016
About 2 years ago

I received some very good advice on this forum in a similar situation last year, you can find it at: http://www.property118.com/assigning-a-joint-fixed-term-ast/82365/

Under an AST where several individuals comprise “the tenant” legally the tenants (A,B,C,D) are regarded as one party to the agreement. Your AST should state that they are a joint and several tenant. As such if one gives Notice they all do. In your case, you might want to confirm this by now giving them Notice so that the 3rd one is in no doubt about her position, but this depends on what your Agreement says about Termination – usually its 2 months notice after the initial 6 months, although the notice can be given after 4 months so that it expires on completion of 6 months of the tenancy. You can then start marketing the property during the notice period.

I have now had several cases where one of the joint tenants wants to leave before the end of the fixed term Agreement. The tenant wishing to leave is responsible for finding a replacement who has to be acceptable to those remaining and also to me i.e. pass a referencing check. We then make a new AST with the new tenant (B,C,D,E) for the remainder of the term of the original AST. This seems to work ok.

Michael Barnes

23:44 PM, 4th June 2016
About 2 years ago

Reply to the comment left by "Mike W" at "23/05/2016 - 17:43":

The rule about one giving notice ends the tenancy for all applies only for notice at or after the end of the fixed term.

My be different in Scotland.


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