Leaving a joint periodic tenancy

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    Leaving a joint periodic tenancy

    Hi all, I know this topic isn't new but I can't find a specific example to my situation so I thought I'd ask.

    I'm currently in a joint AST tenancy which as of the 19th Feb 2019 will go into a statutory periodic tenancy. I am in the process of moving out and getting a replacement tenant arranged so that the LL and agent can have a new fixed term in place with the new tenant by 18th Feb. The remaining tenants do not want to leave and are happy to sign another fixed term of 12 months.

    I've found a new tenant, she has just started the referencing process today (08th Feb). The agent has advised me that this deadline is tight for 18th feb and may not be done in time. I have not given 2 months notice as required by the AST to terminate the joint AST on the 18th Feb. However 1 month ago when I did give notice the LL said they would allow the tenancy to roll over into a periodic tenancy for 1 month to allow me to find a new tenant. All being well the new tenant will pass referencing and move in either on 19th Feb or 19th March if we miss the deadline.

    The question I've got is this, I've proposed the question to my agent that if the referencing for the new tenant falls through or for whatever reason she pulls out I need to fall back on terminating the tenancy so that I am no longer a tenant because I cannot pay for 2 rents simultaneously. From doing my research on here and on shelter website I have read that any single tenant in a joint periodic tenancy can terminate the tenancy for all with 1 month notice. I've propositioned the hypothetical situation to my letting agent that if I was to issue that notice on 19th February (first day of periodic) to terminate the tenancy for all of the joint tenants on 19th March that would be a safety net for me in case the new tenant changes her mind or doesn't sign the new fixed term. Even if I did this the intention would still be for the new tenant to finish referencing and sign a new AST to become a tenant as of 19th March and the existing tenants wouldn't need to do anything if all goes to plan.

    The way I see it is if I don't give notice to end the tenancy then I take the financial risk of a new tenancy not being signed or if I do submit notice then the remaining joint tenants take the risk. Which in my mind makes more sense as it puts the responsibility on them to find another joint tenant or agree to cover the full rent.

    The problem I have is my letting agent is quite abruptly saying that if the new tenant falls through and I leave on 18th March I am still responsible to my responsibilities on the tenancy and my deposit will not be returned until the property is vacated. If the remaining tenants do not find a replacement by the 18th March the landlord will issue notice to evict and if the remaining tenants do not pay the full rent the balance can be taken from my portion of the deposit. The exact wording of the agent's response is below;
    • If *new T* pulls out of the procedure and you do decide to leave the property in March, deciding not to pay your share of rent and the other two tenants wish to remain in the property, you will not be given your share of the deposit. The reason for this is there will be no replacement tenant to give you your share and again, the deposit has to remain protected as a whole and cannot be touched as long as the tenancy stands. However, if *T 1* and *T 2* decide and agree to give you your share of the deposit, they may do so, however they are not obligated to.
    • The only way the deposit will be released is if you all agree to vacate the property as a whole, meaning the property will be remarketed, allowing us to find new tenants.
    • If *new T* doesn't pass referencing or pulls out of the procedure, *T1*, *T2* and yourself are all responsible as you are all in a joint and several tenancy. You will all be responsible in finding a replacement tenant for the 19th of March, unless again you all decide to surrender the property or *T1* and *T2* decide to take accountability for your share of the rent.
    This was their last correspondence to me and I have not yet responded. I have also not had the in depth chat with the remaining joint tenants to see their thoughts on it.

    I want to get the implications of this safety net clear in my head and agree dy the agent before explaining everything to the remaining tenants. Is the agent correct?

    Thanks in advance
    Cameron

    #2
    Originally posted by cjprimrose View Post
    I'm currently in a joint AST tenancy which as of the 19th Feb 2019 will go into a statutory periodic tenancy. I am in the process of moving out and getting a replacement tenant arranged so that the LL and agent can have a new fixed term in place with the new tenant by 18th Feb. The remaining tenants do not want to leave and are happy to sign another fixed term of 12 months.
    I understand from this that the fixed term ends on 18th February - is that correct, or does it end on the 19th?
    In principle it doesn't matter, but just so we don't start giving the wrong dates.

    It is nice of you to have found a replacement tenant, but that's not your obligation.

    [
    ]I've found a new tenant, she has just started the referencing process today (08th Feb). The agent has advised me that this deadline is tight for 18th feb and may not be done in time. I have not given 2 months notice as required by the AST to terminate the joint AST on the 18th Feb. However 1 month ago when I did give notice the LL said they would allow the tenancy to roll over into a periodic tenancy for 1 month to allow me to find a new tenant. All being well the new tenant will pass referencing and move in either on 19th Feb or 19th March if we miss the deadline.
    You can't give notice during the fixed term, anyway, so you aren't any worse off.
    The tenancy will become periodic automatically, so the agent isn't "allowing" anything at all.

    The earliest you can serve notice is on the first day of the first periodic tenancy.
    In theory, you can serve notice to end at the end of that period, but that is subject to a challenge, because that isn't actually long enough - it's a minimum of a month's notice ending at the and of a tenancy period.

    The question I've got is this, I've proposed the question to my agent that if the referencing for the new tenant falls through or for whatever reason she pulls out I need to fall back on terminating the tenancy so that I am no longer a tenant because I cannot pay for 2 rents simultaneously. From doing my research on here and on shelter website I have read that any single tenant in a joint periodic tenancy can terminate the tenancy for all with 1 month notice. I've propositioned the hypothetical situation to my letting agent that if I was to issue that notice on 19th February (first day of periodic) to terminate the tenancy for all of the joint tenants on 19th March that would be a safety net for me in case the new tenant changes her mind or doesn't sign the new fixed term. Even if I did this the intention would still be for the new tenant to finish referencing and sign a new AST to become a tenant as of 19th March and the existing tenants wouldn't need to do anything if all goes to plan.
    Your notice in the periodic tenancy has to be a month, ending at the end of a period and, yes, that ends the tenancy for all of you.

    The problem I have is my letting agent is quite abruptly saying that if the new tenant falls through and I leave on 18th March I am still responsible to my responsibilities on the tenancy and my deposit will not be returned until the property is vacated. If the remaining tenants do not find a replacement by the 18th March the landlord will issue notice to evict and if the remaining tenants do not pay the full rent the balance can be taken from my portion of the deposit. The exact wording of the agent's response is below;[*]If *new T* pulls out of the procedure and you do decide to leave the property in March, deciding not to pay your share of rent and the other two tenants wish to remain in the property, you will not be given your share of the deposit. The reason for this is there will be no replacement tenant to give you your share and again, the deposit has to remain protected as a whole and cannot be touched as long as the tenancy stands. However, if *T 1* and *T 2* decide and agree to give you your share of the deposit, they may do so, however they are not obligated to.
    That's not correct.
    If you give notice, the entire tenancy ends and the entire deposit has to be returned when it does (subject to any claims against it).
    If the remaining tenants want to stay, it's a new tenancy and they would have to have a new deposit and agreement.
    [*]The only way the deposit will be released is if you all agree to vacate the property as a whole, meaning the property will be remarketed, allowing us to find new tenants.
    That's not correct, and actually is an interesting threat.
    The deposit is the property of the tenant and the agent can't just withhold it.
    If you serve notice and end the tenancy, the agent has to return it.

    A practical issue is who they return it to, but I'm ignoring that for now.
    [*]If *new T* doesn't pass referencing or pulls out of the procedure, *T1*, *T2* and yourself are all responsible as you are all in a joint and several tenancy. You will all be responsible in finding a replacement tenant for the 19th of March, unless again you all decide to surrender the property or *T1* and *T2* decide to take accountability for your share of the rent.
    .... Is the agent correct?
    As above, no.

    But, if you give notice, the tenancy ends and they are not obliged to offer a new one to the other tenants, so the practical effect is the same.
    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


      #3
      Originally posted by jpkeates View Post
      The earliest you can serve notice is on the first day of the first periodic tenancy.[/quote.
      No, it is the second day - S5(5) Housing Act 1988.
      So a SPT cannot be ended before the end of two months without the consent of all tenants and landlord.
      Originally posted by cjprimrose View Post
      I have not given 2 months notice as required by the AST to terminate the joint AST on the 18th Feb.
      Had you given th2 2 months' notice, it would be arguable that your responsibilities ended at the end of the fixed term.
      By giving less notice it is unlikely that such an argument would succeed.

      Originally posted by cjprimrose View Post
      However 1 month ago when I did give notice the LL said they would allow the tenancy to roll over into a periodic tenancy for 1 month to allow me to find a new tenant. All being well the new tenant will pass referencing and move in either on 19th Feb or 19th March if we miss the deadline.
      That is not the only option. The new tenancy could start on any day; it could even keep the same rent-payment date.
      You could propose:
      • When new tenant is ready, existing tenancy is surrendered and new tenancy is granted for 11 months and Y days (keeping end date and rent-payment dates the same).
      • New tenant pays agent rent for remainder of first month plus deposit share.
      • Agent pays you those monies less agreed deductions.
      • (do not agree to new tenant paying you direct, as that could introduce legal complications for both you and the new tenant)

      Originally posted by cjprimrose View Post
      I've propositioned the hypothetical situation to my letting agent that if I was to issue that notice on 19th February (first day of periodic) to terminate the tenancy for all of the joint tenants on 19th March that would be a safety net for me in case the new tenant changes her mind or doesn't sign the new fixed term.
      As I stated above, that would not end the tenancy; you cannot end the tenancy before the end of month 2 of the periodic tenancy.

      The way I see it is if I don't give notice to end the tenancy then I take the financial risk of a new tenancy not being signed or if I do submit notice then the remaining joint tenants take the risk. Which in my mind makes more sense as it puts the responsibility on them to find another joint tenant or agree to cover the full rent.

      Originally posted by cjprimrose View Post
      The problem I have is my letting agent is quite abruptly saying that if the new tenant falls through and I leave on 18th March I am still responsible to my responsibilities on the tenancy and my deposit will not be returned until the property is vacated.
      That seems right. The deposit is for the tenancy; there are not separate deposits for each individual.

      Originally posted by cjprimrose View Post
      If the remaining tenants do not find a replacement by the 18th March the landlord will issue notice to evict and if the remaining tenants do not pay the full rent the balance can be taken from my portion of the deposit. The exact wording of the agent's response is below;
      • If *new T* pulls out of the procedure and you do decide to leave the property in March, deciding not to pay your share of rent and the other two tenants wish to remain in the property, you will not be given your share of the deposit. The reason for this is there will be no replacement tenant to give you your share and again, the deposit has to remain protected as a whole and cannot be touched as long as the tenancy stands. However, if *T 1* and *T 2* decide and agree to give you your share of the deposit, they may do so, however they are not obligated to.
      • The only way the deposit will be released is if you all agree to vacate the property as a whole, meaning the property will be remarketed, allowing us to find new tenants.
      • If *new T* doesn't pass referencing or pulls out of the procedure, *T1*, *T2* and yourself are all responsible as you are all in a joint and several tenancy. You will all be responsible in finding a replacement tenant for the 19th of March, unless again you all decide to surrender the property or *T1* and *T2* decide to take accountability for your share of the rent.
      That seems to be a fair summary of the law,
      Although point 2 is slightly misleading. The deposit should also be released if the tenancy is surrendered and a new tenancy entered. But the money would probably be retained by the agent and re-protected for the new tenancy.
      And in point 3 you do not have to find a replacement: the remaining tenants could just pay more each.

      Comment


        #4
        Originally posted by cjprimrose View Post
        From doing my research on here and on shelter website I have read that any single tenant in a joint periodic tenancy can terminate the tenancy for all with 1 month notice. I've propositioned the hypothetical situation to my letting agent that if I was to issue that notice on 19th February (first day of periodic) to terminate the tenancy for all of the joint tenants on 19th March that would be a safety net for me in case the new tenant changes her mind or doesn't sign the new fixed term. Even if I did this the intention would still be for the new tenant to finish referencing and sign a new AST to become a tenant as of 19th March and the existing tenants wouldn't need to do anything if all goes to plan.
        Originally posted by jpkeates View Post
        The earliest you can serve notice is on the first day of the first periodic tenancy.
        In theory, you can serve notice to end at the end of that period, but that is subject to a challenge, because that isn't actually long enough - it's a minimum of a month's notice ending at the and of a tenancy period.
        No. While it is possible to give a valid notice to quit on the first day of a period of the tenancy to end the tenancy at the end of that period (by dating the notice to end on the 1st day of the following period), a notice to quit given on the first day of a periodic statutory periodic tenancy has no effect: s5(5) of the Housing Act 1988. So the earliest you can unilaterally end the SPT that will arise with a notice to quit is 18 April with a notice to quit served any time between 20 Feb and 19 March inclusive.

        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.

        I do not answer questions through private messages which should be posted publicly on the forum.

        Comment


          #5
          Originally posted by KTC View Post
          No. While it is ...
          I do keep getting that wrong, don't I.
          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


            #6
            Thank you everyone for the responses. I understand enough now to explain to my fellow joint tenants the situation I am in. I now realise I can't actually give notice to end the periodic tenancy before 18th April. Practically that doesn't reduce any risk to me paying overlapping rents with my new property so I will have to simply hope everything goes smoothly with the change of tenant.

            Thanks for your responses.

            Cameron

            Comment

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