Joint liability tenant refusing to move out

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    #16
    My point is essentially that property and contract law are different, and in this case, they conflict.

    Someone enters a joint and several contract for 12 months (say).
    They can't reasonably expect to know that they can't end the contract at 12 months and in fact are liable for a minimum of 13 (maybe 14) months.
    Without knowing what they're agreeing to (the document they sign almost certainly says something different to the actual situation) they can't contract - intent requires that you know what you're agreeing to.

    The tenant would have to know that:
    The contract could extend (they probably do).
    They can't give notice during the fixed term to end at the end of the fixed term (no one knows that).

    And in order to avoid giving two months notice, that the start of the next period is valid as equivalent to the end of a rental period (no one knows that).

    My guess is that even if they took legal advice before signing a tenancy agreement they'd not be properly advised.
    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

    Comment


      #17
      Originally posted by KTC View Post
      The joint tenants may well only have intended to enter into an agreement for X months, and one of the joint tenant here clearly does not either assent positively or wish to withdraw implied assent to continue periodically, but it doesn't matter because whether a periodic tenancy arise under s5 Housing Act 1988 rest solely on how the fixed term tenancy ends.

      A tenancy ending by the effluxion of time is not a surrender. By "other action", we're talking break notices for example. There has not been a surrender by deed. With one or more of the joint tenant still living there, it's hard to argue how there can be implied surrender / surrender by operation of law since the starting point would be the action of the tenant is inconsisent with a tenancy continuing.

      The unfortunate effect of this is as here when one or more joint tenant want to leave but the others don't, but overall the clauses are drafted to prevent a landlord from being able to prevent a SPT from arising.
      I've resurrected this rather than create a new thread, because the context is helpful.

      I've just had an interesting correction elsewhere on the issue of one or some of the joint tenants leaving at the end of the fixed term and whether or nor an SPT arises.

      The argument is that no SPT arises because in the 1988 Housing Act, S5(2) says “the tenant shall be entitled to remain in possession”, not is obliged to remain in possession, and S45(3) says [defining the meanings in Part 1] “tenant means all the individuals”. So, if all the individuals don't exercise their entitlement, no SPT arises.

      Which does leave the remaining individuals in a bit of a limbo until they pay rent. At which point a new tenancy is created with the remaining individuals only - and it's a new tenancy, so all the new tenancy obligations on the landlord kick in.
      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

      Comment


        #18
        I don't agree that's the effect.

        They are all entitled to remain in possession. Nowhere does it then say they all have to exercise that entitlement together for it to take effect.

        Even if not all of the joint tenants are still living there, the joint tenant as one are still in possession of the premises on the coming to an end of the fixed term tenancy because at least one of them are still there. That person is choosing to exercise that entitlement. Her entitlement to remain in possession are then dependent on the deemed granting of a periodic tenancy whereby the tenant is the same person who was then tenant under the fixed term tenancy immediately before it came to an end, i.e. all of them.

        I would like to know if there's any authorities on this, if the person you were talking to know of any?
        I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

        Comment


          #19
          Originally posted by jpkeates View Post
          And, while I am of the view that at the end of the fixed term one tenant moving out ends the joint tenancy, no one else seems to agree.
          I am with you on this. The 'Tenant' was A+B. At end of tenancy A moved out, B kept paying a different amount. Probably a new Tenant was created, solely B.

          But as a LL that is less than ideal, one person to go after for the debt vs two...

          Comment


            #20
            But s45(3) says that the tenant means all the individuals in Part 1 of the act.
            Given that the position of joint and several tenants is well established, s45(3) must be there for a reason.

            With that interpretation that act says ​​​​​[all the individuals] shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, [their] right to possession shall depend upon a periodic tenancy arising by virtue of this section.

            So arguably, as I think about it, it's possible for a periodic tenancy to arise for some of them, as their right arises as individuals, not as the (collective) tenant.
            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


              #21
              Originally posted by sam_cat View Post
              I am with you on this. The 'Tenant' was A+B. At end of tenancy A moved out, B kept paying a different amount. Probably a new Tenant was created, solely B.
              If B pays a different amount of rent than before, and the landlord accept that difference. That's a whole different kettle of fish since a completely different unwritten tenancy may have been granted than a SPT under s5.

              Originally posted by jpkeates View Post
              So arguably, as I think about it, it's possible for a periodic tenancy to arise for some of them, as their right arises as individuals, not as the (collective) tenant.
              We may disagree on whether a SPT arise at all. But if it does arise, the Act is explicit on who is the landlord and who is the tenant, it has to be all of them.

              deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the person who was then the tenant under that tenancy;
              I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

              Comment


                #22
                s35 changes the issue quite fundamentally, because it's saying (essentially) that for part 1 of the housing act, the normal interpretation of joint tenants as a single tenant doesn't apply in the same way. Otherwise it would have no point being there at all. So it must be there to do something - the legislation works perfectly well without it.

                Because you have to be able to replace "the tenant" with "all the individuals", because that's what s35 says it means, that section then says "deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the [people] who [were] then [all of the individuals] under that tenancy"

                So, it can't be created if that's the case, because all of the individuals aren't taking up their entitlement, some of them are.

                Sorry if I am contradicting myself a little, I'm still processing this.
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #23
                  Anyone got any authoritative case or legal book confirming JPK's recent update - (which I've very unsure of but...)
                  I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                  Comment


                    #24
                    There are two issues I've never been able to find a definitive answer on (in support of my view or opposing it).

                    This one and the issue of what ends a tenancy when the landlord serves notice and the tenant moves out in line with it, but doesn't do anything else to end the tenancy (like explicitly surrender it).

                    The best I've been able to come up with is that either a) it happens at such a low level of court it's never reported and no one ever bothers to appeal it high enough to be decided or b) it falls into the "it just works itself out and no one cares or suffers enough to do anything about it".
                    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                    Comment


                      #25
                      Originally posted by jpkeates View Post
                      s35 [sic] changes the issue quite fundamentally, because it's saying (essentially) that for part 1 of the housing act, the normal interpretation of joint tenants as a single tenant doesn't apply in the same way. Otherwise it would have no point being there at all. So it must be there to do something - the legislation works perfectly well without it.
                      You're using s45 to go in reverse. Going forward per how it's presented in Woodfall....

                      1, It's an assured tenancy, which is of a fixed term.

                      2, It comes to an end otherwise than by virtue of (a) court order, (b) "a surrender or other action on the part of the tenant", (c) notice under Immigration Act 2014.

                      3, A periodic tenancy is deemed granted per the conditions set out in subsection 3, thus giving the tenant the entitlement to remain in possession.

                      The important bit here is 2(b) above. For the periodic tenancy not to be deemed granted, the fixed term tenancy need to have come to an end by action on the part of the tenant, here the tenant being all of them per s45(3). So one but not all joint tenants cannot bring the tenancy to an end without the others consent, unlike the situation under common law.
                      I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                      Comment


                        #26
                        Point 2b is interesting

                        There must be an action that is not a surrender that can end the tenancy, because the legislation says there is.
                        Which is...?

                        When the fixed term ends, the joint agreement ends.
                        At that point there is no collective tenant - which is all of the individuals - there are only individuals.
                        For that brief instant that is the legal midnight.

                        The individuals who don't want a periodic tenancy have taken their own "action" - they've left the property, often giving a clear indication of their wishes in the form of (invalid) notice.

                        The legislation attempts to form a new joint tenancy with the same tenant, which requires all of the individuals.
                        And not all of them wish to take up the new joint tenancy that they are entitled to.
                        And if all of them don't want to, it can't form - because the tenant is all of them, not some of them.

                        A person can't be held to a contract where one of the essential terms, the duration, is misrepresented (and moreso, it's a consumer contract, so you can't expect the consumer to have any knowledge beyond what's presented to them).

                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #27
                          Originally posted by KTC View Post

                          3, A periodic tenancy is deemed granted per the conditions set out in subsection 3, thus giving the tenant the entitlement to remain in possession.

                          .
                          The important bit here appears to be "entitlement"; it does not say "obligation".

                          It also dos not address the issue of "can one person in a joint tenancy prevent a new tenancy with the same tenant from coming into being?".

                          There is no question that one person cannot end a joint tenancy that is not periodic and that the tenancy automatically comes to an end at the end of the term.
                          The question is "can an individual be bound by a contract for longer than the term for which they have agreed to be bound?".

                          Comment


                            #28
                            Section 1(1) of the Act provides that one of the conditions for an assured tenancy is that "the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home".

                            Section 5(2) says: "If an assured tenancy which is a fixed term tenancy comes to an end [N/A to this thread] then the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy [...] his right to possession shall depend upon a periodic tenancy arising by virtue of this section". The point is that the entitlement arises because a tenancy arises, not that the tenancy arises because there is an entitlement. In other words, if the conditions set out are satisfied a tenancy will arise.

                            Section 5(3) is clear that the tenancy which arises arises immediately after the fixed term ends and that it is granted to the persons who were tenants when the fixed term tenancy ended.

                            Taking all the above together can there be any doubt that under the HA 1988 if one joint tenant remains the tenancy continues and the tenants are all the joint tenants?

                            Comment


                              #29
                              Wrote this last night when the forum was playing up

                              Originally posted by jpkeates View Post
                              There must be an action that is not a surrender that can end the tenancy, because the legislation says there is.
                              Which is...?
                              The obvious one would be the giving of a break notice by the tenant.

                              Originally posted by MdeB
                              It also dos not address the issue of "can one person in a joint tenancy prevent a new tenancy with the same tenant from coming into being?".
                              No, because that one person cannot by themselves surrender or otherwise determine the fixed term tenancy.

                              Originally posted by jpkeates View Post
                              And if all of them don't want to, it can't form - because the tenant is all of them, not some of them.

                              A person can't be held to a contract where one of the essential terms, the duration, is misrepresented (and moreso, it's a consumer contract, so you can't expect the consumer to have any knowledge beyond what's presented to them).
                              Originally posted by MdeB
                              The question is "can an individual be bound by a contract for longer than the term for which they have agreed to be bound?".
                              Why can't they? In the same way a landlord may not want to be bound by such a periodic tenancy, tough. If the law say such a tenancy exist between these parties, then it exist between these parties.

                              Y'all are fixating on the entitlement. By the point where that entitlement exist, it's too late. The test is how the fixed term tenancy ended. If it did not end in the 3 ways set out in s5(2), then the tenant is entitled to remain in possession etc. etc. That entitlement take the form of a periodic tenancy deemed granted per s5(3), taking effect in possession immediately on the coming to an end of the fixed term tenancy. Once that entitlement exist, the periodic tenancy already exist. To give up that entitlement, the tenant would then have to serve a notice to quit or agree a surrender with the landlord. Of course, to guard against a landlord forcing an incoming tenant to sign away this security, a tenant cannot give notice before or on the day that the tenancy was granted, which result in at least two periods if the period is less than yearly. That that is a negative side effect in a few cases from the attempt in protecting the tenant is again, tough.
                              I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                              Comment


                                #30
                                re #29:

                                Your argument appears to be "a SPT automatically arises and therefore a SPT automatically arises".

                                Originally posted by KTC View Post
                                Why can't they?
                                Lord Bridge stated "In a common law situation, where parties are free to contract as they wish and are bound only so far as they have agreed to be bound, this leads to the only sensible result." (http://www.bailii.org/uk/cases/UKHL/1991/6.html).

                                I realise the facts of that case are not applicable here, but it suggests that it is an accepted legal principle.

                                Originally posted by KTC View Post
                                Y'all are fixating on the entitlement.
                                That is because that is the word in the Act that appears to allow one person in a joint tenancy to prevent a SPT from arising.
                                Essentially,
                                • if "entitled" means "has the option", then all the people in a joint tenancy have to agree for a SPT to arise;
                                • if "entitled" means "is obligated", then only one person in a joint tenancy can force a SPT onto the other people.
                                Any argument that does not address "entitled" has no relevance.

                                Comment

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