Joint tenancy where one tenant serves notice / other tenant refuses to leave

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    Joint tenancy where one tenant serves notice / other tenant refuses to leave

    i have two tenants in a joint tenancy where one has served notice and has already moved out. I was prepared to offer a new sole tenancy to the remaining tenant if she could provide a guarantor which she has failed to do. To protect myself I also served a section 21 notice to both tenants which expires in March. Both tenants were on a periodic tenancy at the time when the one tenant served notice. As things currently stand I now have one sitting tenant who is now in arrears. Assuming she plays hardball and drags this out through the whole court / bailiff process are both tenants still jointly and severably liable for arrears and my costs?

    #2
    Assuming the notice from the tenant who left was valid, when it expired the tenancy ended and the remaining tenant should have moved out.

    If you accept any rent from them, they would start a new tenancy automatically, so hopefully they haven't paid any rent and, because none is due, therefore aren't technically in arrears.

    The occupant is now not a tenant (assuming no rent has been paid) and is holding over.
    You are (at least in theory) entitled to a fee called mesne profits (mesne pronounced mean) which is twice the value of the rent while they remain in occupation.

    If the tenant who moved out didn't serve valid notice, the tenancy is ongoing and both tenants are jointly liable.

    I would take some professional advice, because what you do next in this situation isn't clear.
    The section 21 notice may be invalid because the tenancy against which it serves has now ended anyway.
    You should be able to request a possession order based on the tenancy having ended, but that's not a standard / simple route through the courts.
    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 Stahero View Post
      Assuming she plays hardball and drags this out through the whole court / bailiff process are both tenants still jointly and severably liable for arrears and my costs?
      Only if the one that have left had assented to the other holding over, otherwise no.
      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


        #4
        JP Keats - now I'm slightly worried as the remaining tenant paid a month's rent at the time from when her sole tenancy should have started. I provided her with a tenancy agreement and a guarantor agreement but her planned guarantor fell through and so I do not have a valid tenancy agreement or guarantor agreement as no signed docs were returned. What is the legal position of her occupancy and what are my options to get her out if she has now lived there for 2 months without paying rent? Thanks

        Comment


          #5
          Originally posted by Stahero View Post
          JP Keats - now I'm slightly worried as the remaining tenant paid a month's rent at the time from when her sole tenancy should have started. I provided her with a tenancy agreement and a guarantor agreement but her planned guarantor fell through and so I do not have a valid tenancy agreement or guarantor agreement as no signed docs were returned. What is the legal position of her occupancy and what are my options to get her out if she has now lived there for 2 months without paying rent? Thanks
          If rent was paid, you have a tenant.
          The previous tenant is no longer involved.

          Even if the agreement wasn't signed, unless it was clearly conditional on the guarantor agreement being signed, it probably is the operating agreement for the tenancy.
          Even if the written agreement isn't valid, there is some kind of verbal agreement in place, because the tenant has possession and has paid rent at least once.

          Your best route, if the tenant owes two month's rent is to evict under s8 of the housing act 1988.
          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
            It was absolutely conditional on a guarantor being available- several emails with her stating that was my position and a space in the tenancy agreement for the guarantor to sign (in addition to a separate specific guarantor agreement). I am therefore not entirely sure which agreement I can seek possession under even with a section 8 notice?

            Comment


              #7
              They paid rent, you accepted it, there's a tenancy. It doesn't really matter if it's in accordance with the terms that was set out. Serve s8 rent arrears, and evict in accordance with the associated procedure.
              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


                #8
                Originally posted by Stahero View Post
                I am therefore not entirely sure which agreement I can seek possession under even with a section 8 notice
                It doesn't really matter in this case.
                For documentation purposes, use the unsigned document as though it were valid.

                Better that the court decide that the agreement isn't valid and that the tenancy agreement is verbal than find out that there's a tenancy agreement of disputed validity that they didn't know about during a hearing.

                The tenant has paid one lot of rent, which, hopefully, matches the value of rent in the agreement they have.

                What happened about a deposit?
                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


                  #9
                  Can I apply for section 8 under ground 17 on the basis that a guarantor wasn't available? In other words a tenancy was completely conditional on a guarantor being available which has not proven true? This would permit me to serve 14 days notice.

                  Comment


                    #10
                    Discretionary grounds and if your new sole tenant is paying rent I can't see any judge giving a PO for just this. Even not paying rent highly unlikely, but you could try....
                    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


                      #11
                      Originally posted by Stahero View Post
                      Can I apply for section 8 under ground 17 on the basis that a guarantor wasn't available? In other words a tenancy was completely conditional on a guarantor being available which has not proven true? This would permit me to serve 14 days notice.
                      You can, and I'd include it, but the ground you want is Ground 8.
                      Ground 8 is mandatory and 17 is discretionary, and they both have 2 weeks notice.

                      With ground 17, you're asking a judge to make someone homeless because you and the tenant didn't communicate properly.
                      Ground 8 is based entirely on fact.

                      And the beauty of ground 8 is that the tenant has a massive incentive to catch up and keep any rent owed below the two month threshold.
                      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


                        #12
                        Thanks for all the responses. I have to say I'm not entirely sure what any reasonable person would have done differently. I made it very clear that she would have to move out at the end of their original notice period unless she was able to provide a guarantor which she has failed to do and she has now just rolled herself into this position

                        Comment


                          #13
                          Not provide a tenancy, not accept rent?

                          NB Did you provide ALL the documents etc required for the new tenancy ? R2R checks, GSC, EPC, desposit protected & PI served, "how to rent" etc etc etc etc?? You may find, sadly, any s21 will be invalid.

                          Good luck, hope you can negotiate an exit to your conundrum.
                          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...

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