Help! Agent and flatmate not recognising end of joint statutory periodic tenancy

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    Help! Agent and flatmate not recognising end of joint statutory periodic tenancy

    Hi,

    I would like to thank anyone reading this in advance for your time and for any insight you choose to share with me. There's a "too long didn't read" at the bottom for anyone who's skimming these boards for advice pertinent to their situation (like I usually do!)


    My tenancy is for a property in mainland England.

    Just over a year ago I signed a joint tenancy agreement with my ex flatmate Victor (not his actual name) and an LL via an Agency. The initial term just ended, we gave notice as per the Tenancy Agreement (TA) and this was accepted by the agency on behalf of the LL. I moved out and surrendered my keys ahead of the end of the initial term, Victor has decided that he wanted to stay and hasn't moved out or surrendered his keys.

    It should be noted that Victor has informally agreed with the agency (over email) to pay the full (and slightly discounted) rent for at least the first two months of the statutory period tenancy. I appreciate this, but Victor has been unreliable with rent before and as there are more tenant liabilities in the TA than just the rent, I'd rather not risk it. I don't see why the agency and Victor couldn't have come to a separate agreement that formalise the discount, duration and took into account the limitations presented by the current global pandemic...

    The agency told me that Victor's failure to surrender the property means that despite the original notice to end being accepted, the tenancy still stands with the same conditions as the initial TA but as a Statutory Periodic Tenancy.

    I served notice (for the second time) to quit the periodic tenancy on the first day of the periodic tenancy.

    The agency accepted this notice but is now telling me that because Victor won't be surrendering the property at the end of my second notice to quit, the tenancy will continue on, just as it did the first time we served notice. Like groundhog day, only with less Billy Murray. I think they're wrong and I'm preparing myself for the coming dispute over my deposit.

    I suspect that the agency and Victor just won't recognise that the tenancy has ended and Victor will continue paying rent. I think I may be able to argue that not only has my tenancy ended, but Victor and the LL have a new tenancy by virtue of him paying and them accepting rent.

    I also think I'm likely being very naive and wishing for the option that will ensure I get 100% of my deposit back. I know that if I rely on Victor to clean, I will more than likely lose some of my deposit compensating the LL for cleaning up Victor's mess.

    Am I right? Am I being naive? Are the agency correct about the second notice not being enough to end the tenancy if Victor stays? Help!


    TL/DR - I've served notice on a joint statutory periodic tenancy and I believe this is enough to end the tenancy even if my flatmate doesn't surrender the property. I'd like someone to tell me if I'm wrong.
    Last edited by ReluctantJointTenant; 08-05-2020, 17:53 PM. Reason: Grammar/further detail

    #2
    Complete & paste https://forums.landlordzone.co.uk/fo...om-new-posters.

    Comment


      #3
      Originally posted by ReluctantJointTenant View Post
      I've served notice on a joint statutory periodic tenancy and I believe this is enough to end the tenancy even if my flatmate doesn't surrender the property. I'd like someone to tell me if I'm wrong.
      You are not wrong. The right of a joint tenant to end a periodic tenancy by notice to quit was established by Hammersmith and Fulham LBC v Monk [1992] AC 478 and confirmed by Sims v Dacorum Borough Council [2014] UKSC 63.


      Comment


        #4
        As above, but to add
        a) Your notice does not really end until two months after expiry of the fixed period. This is because the notice is likely invalid if given before the end of the fixed term, and once that happens it is too late to give one moth of notice. There is some debate about whether giving notice (as you sort of did) at the instant of expiry of the fixed term will allow you just on month.

        b) There is no such thing as "your" deposit. The agency could just return it all to your flatmate, and then grant him a new tenancy - then your problem to fight it out with flatmate.

        Comment


          #5
          Thank you all so far: for simplicity I'll just answer all of the useful questions systematically:


          Q1 – Where is the rented property located (England / Wales / Scotland / N Ireland)?
          Mainland England

          Q2 – What type of Tenancy Agreement (TA) is this e.g. sole tenant / multiple tenant / room only?
          Initial tenancy agreement was a joint tenancy agreement for the whole flat.

          Q3 – What date did current TA start dd/mm/yy?
          Initial tenancy agreement started 01/05/2019
          Statutory periodic tenancy commenced automatically on 01/05/2020

          The initial tenancy agreement started for me when a previous tenant's tenancy was was changed over to me at the end of the initial term of their tenancy agreement. This has happened a few times since the first iteration of the tenancy (when the inventory was last taken). In total five different people have been a tenant at this flat in one long tenancy that has been changed over several times. Victor was not one of the original tenants but was the first new person to come in as part of a tenancy change over and so is familiar with the timeline. Victor's recounting of the timeline is corroborated by the paperwork I have found (and the names on the post that still comes to the flat). I was never given an inventory when I moved in but I found one in a a draw with the names of the first two tenants that was dated 2014.


          Q4 – How long was initial fixed term (6/12/24 months / other)?
          Initial tenancy agreement had a fixed term of 12 months
          Statutory periodic tenancy runs month, by month (one months notice rent paid monthly etc)

          Q5 – Does the TA state that rent is due weekly? / 4-weekly? / per calendar month (if so, on what same date each month)?
          Rent was/is paid monthly on the first day of the month

          Q6 – Did the TA require a tenant damage deposit to be paid? If so, on what date was this paid (dd/mm/yy)?
          Yes, they had half of the deposit from Victor already (he was already at the property, his former flat,mate transferred their tenancy to me). I paid half of the total deposit on 25 March 2019. The deposit certificate says that the full deposit was protected on 01/05/2019

          There is a clause in the TA that states that were there is a joint tenancy, the returned deposit will be divided equally and multiple cheques will be sent to the single forwarding address provided. I quoted this clause to the agency and provided my new address.

          Q7 – If your query relates to a notice for repossession from the landlord (a Section 8 or Section 21 notice) or a tenants's notice to quit to the landlord, please provide the exact date the notice was sent/received (dd/mm/yy).
          The first notice at the end of the initial fixed term was sent on 25/02/2020 to end on 30/04/2020, the tenancy agreement stipulates two months notice and I gave slightly more than that. The first notice was given in writing in the body of an email to the agency and they accepted it.
          The second notice to quit, for the statutory periodic tenancy was sent on 01/05/2020 and is due to expire by 01/06/2020. This notice was a more formal letter attached to an email.
          The TA doesn't say how notice needs to be delivered, only that it's in writing.


          Q8 – Does the landlord live in the same property as the tenant?
          No


          More questions:

          Q9:

          The agency says the first notice is invalidated because victor didn't adhere to the terms of ending the tenancy in the TA. They say the second notice will also be invalidated if Victor doesn't surrender the property as per the original TA

          My understanding is when the fixed term on a tenancy agreement ends, section 5 of the 1988 Housing act creates a new periodic tenancy which is identical to the fixed term agreement with the exception of clauses relating to termination. The exact wording of section 5(3)(e) is:
          “Under which, subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy.”

          Basically it doesn't matter if Victor stays past 31/05/2020, the tenancy ends. Is this right?


          Q10:
          If the agency accept rent paid by victor in 01/06/2020, there's an argument that his has his own tenancy and I'm no longer a tenant. Is this right?

          Q11:
          I can demonstrate that half of the deposit is mine by virtue of me having paid for half of the deposit and by an email trail from the agency asking for me to pay them half of the deposit. Is this right?

          Q12:
          Technically the agency took longer than 30 days to put my deposit in the protection scheme, what does this mean for me?

          Q13:
          I suspect the agency are being incompetent and I think it would be better just to speak to the landlord and get his thoughts on this. For one thing, he may no longer have a tenant damage deposit if the tenancy to which the deposit being held has ended. The TA states that the landlord needs to get back to the tenants with any proposed deductions in 10 days or else return the deposit in 10 days (of the tenancy ending). This could leave him in a tricky position if he doesn't inspect the property in time on the advice from the agency, especially as although I'll ask Victor to at least get his room/bathroom professionally cleaned I doubt he'll listen to me. The address I have for the landlord is care of the agency. How can I contact the landlord? Is that a good idea?


          Thanks!

          Comment


            #6
            Originally posted by ReluctantJointTenant View Post
            I served notice (for the second time) to quit the periodic tenancy on the first day of the periodic tenancy.
            Originally posted by ReluctantJointTenant View Post
            The second notice to quit, for the statutory periodic tenancy was sent on 01/05/2020 and is due to expire by 01/06/2020. This notice was a more formal letter attached to an email.
            Serve another one, to end 30 June/1 July. A notice to quit served on the first day of the statutory periodic tenancy is of no effect per s5(5) of the Housing Act 1988.

            Apart from that, yes, your notice will end the tenancy whether the LL, LA, or Victor like it or not.
            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


              #7
              Originally posted by ReluctantJointTenant View Post
              The initial term just ended, we gave notice as per the Tenancy Agreement (TA) and this was accepted by the agency on behalf of the LL.
              If the original notice was after the initial term and was valid and accepted by the agency, then the tenancy ended on its expiry and Victor, (not you) is holding over. A new periodic tenancy would only be created if the agency gave him permission to be there and accepted rent and that would be with him, not you. You needn't have served a further notice because you liability ended with the expiry of your first notice.

              Comment


                #8
                Originally posted by KTC View Post
                Serve another one, to end 30 June/1 July. A notice to quit served on the first day of the statutory periodic tenancy is of no effect per s5(5) of the Housing Act 1988.

                Apart from that, yes, your notice will end the tenancy whether the LL, LA, or Victor like it or not.
                I would direct the agent to the two cases mentioned above (and point out that they're being completely unrealistic - otherwise tens of thousands of people would be trapped in tenancies that they wanted to end.

                And while KTC is correct, not many people know about the first day of a periodic tenancy notice being invalid, and, unless the agent raises it, I'd ignore 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


                  #9
                  .... and the agent/landlord really don't seem to know what they are doing in terms of the management of joint tenancies.

                  Even having a term in a tenancy agreement with one party (all the tenants) which states that a deposit will be split between the parts of that one party is a tad bizarre. It has nothing to do with the landlord how the "tenant" apportions its finances.

                  Comment


                    #10
                    Thanks everyone, I really do appreciate your time and advice!

                    Comment


                      #11
                      Originally posted by ReluctantJointTenant View Post
                      Just over a year ago I signed a joint tenancy agreement with my ex flatmate Victor (not his actual name) and an LL via an Agency. The initial term just ended, we gave notice as per the Tenancy Agreement (TA) and this was accepted by the agency on behalf of the LL. I moved out and surrendered my keys ahead of the end of the initial term, Victor has decided that he wanted to stay and hasn't moved out or surrendered his keys.

                      The agency told me that Victor's failure to surrender the property means that despite the original notice to end being accepted, the tenancy still stands with the same conditions as the initial TA but as a Statutory Periodic Tenancy.
                      I would put the following argument to the agency:
                      1. S5(2) of the Housing Act 1988 says "the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section"
                      2. S45(3) HA 1988 says "Where two or more persons jointly constitute either the landlord or the tenant in relation to a tenancy, then, except where this Part of this Act otherwise provides, any reference to the landlord or to the tenant is a reference to all the persons who jointly constitute the landlord or the tenant, as the case may require.",
                        and therefore S5(2) requires that all of the joint tenants must exercise their entitlement for a SPT to arise.
                      3. You gave clear notice, accepted by the agent, that you did not intend to enter into a SPT on expiry of the fixed term, and your vacating the premises before the end of the fixed term is confirmation that the tenant did not exercise their entitlement to a SPT..
                      4. Therefore the tenant did not remain in possession of the property and so no SPT arose.
                      Do not engage with them as to what, if any, tenancy did arise after the fixed term: that is their problem.

                      As far as I know, the above argument has not been tested in court, but it should make the agent think hard about whether they want to be a test case (the argument has been extensively debated on another thread, but we concluded that it depends on the meaning of "entitled" and only a judge could make that determination).


                      Originally posted by ReluctantJointTenant View Post
                      I served notice (for the second time) to quit the periodic tenancy on the first day of the periodic tenancy.

                      The agency accepted this notice but is now telling me that because Victor won't be surrendering the property at the end of my second notice to quit, the tenancy will continue on, just as it did the first time we served notice. Like groundhog day, only with less Billy Murray. I think they're wrong and I'm preparing myself for the coming dispute over my deposit.
                      Unfortunately that notice was not valid (and cannot be deemed valid by the agent accepting it because it is, if above argument fails, a joint SPT) because S5(5) HA 1988 says tenant notice served on or before the first day of a SPT has no legal effect.

                      As stated above agent may not know this, but if it were to go to court, then judge is likely to know (and agent is likely to employ a lawyer who knows), so personally I would serve notice again ending 30th June 2020, IF the agent has not given in by 22 May.

                      Their argument about Victor not surrendering is wrong. Refer them to the judgements quoted in post #3.
                      Those judgements make would make your valid notice served as suggested above end the tenancy, and if Victor does not vacate (or agree a new tenancy), then he is holding over and the landlord must take action against him to regain possession (LL would have no legal claim against you.

                      Originally posted by ReluctantJointTenant View Post
                      Q9:
                      The agency says the first notice is invalidated because victor didn't adhere to the terms of ending the tenancy in the TA. They say the second notice will also be invalidated if Victor doesn't surrender the property as per the original TA

                      My understanding is when the fixed term on a tenancy agreement ends, section 5 of the 1988 Housing act creates a new periodic tenancy which is identical to the fixed term agreement with the exception of clauses relating to termination. The exact wording of section 5(3)(e) is:
                      “Under which, subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy.”

                      Basically it doesn't matter if Victor stays past 31/05/2020, the tenancy ends. Is this right?
                      See my points above regarding the two notices you gave.

                      Originally posted by ReluctantJointTenant View Post
                      Q10:
                      If the agency accept rent paid by victor in 01/06/2020, there's an argument that his has his own tenancy and I'm no longer a tenant. Is this right?
                      Probably not, because that notice was not valid (see above).
                      But if the argument that no SPT arose is valid, then a new tenancy for Victor arose 1 May 2020.

                      Originally posted by ReluctantJointTenant View Post
                      Q12:
                      Technically the agency took longer than 30 days to put my deposit in the protection scheme, what does this mean for me?
                      I would point this out to them and say that you will take no action to claim the penalty if they return your share of the deposit in full and accept that you are not responsible for any rent after 30 April 2020.

                      Also you state that no inventory was prepared/provided when you moved in.
                      This means that the agent/LL has no evidence of the state of the property when you moved in and therefore has o basis for withholding the deposit for damages. Tell them this if they want to withhold part of the deposit and use it as part of your claim to the deposit protection scheme for the return of your full deposit.

                      Originally posted by ReluctantJointTenant View Post
                      Q13:
                      The TA states that the landlord needs to get back to the tenants with any proposed deductions in 10 days or else return the deposit in 10 days (of the tenancy ending).
                      Part of the problem here is that it may be that the tenancy has not ended (depending on whether or not a judge agrees with my firat argument above).


                      Further action
                      I suggest the following:
                      1. If you are not successful on your own, then talk to Citizens' Advice and Shelter.
                      2. Tell Shelter of your problems ending a joint tenancy and ask them to campaign to have section 5(2) HA1988 amended to make it clear that a joint tenancy can be ended at the end of the fixed term by just one joint tenant, how that is to be achieved, and what happens if one or more (but not all) joint tenants remain..

                        It would be good to see Shelter do something that helps rather than hinders tenants.

                      Comment


                        #12
                        Originally posted by AndrewDod View Post

                        Even having a term in a tenancy agreement with one party (all the tenants) which states that a deposit will be split between the parts of that one party is a tad bizarre. It has nothing to do with the landlord how the "tenant" apportions its finances.
                        I have to disagree with this.

                        A clear statement of how the deposit will be returned can avoid problems if joint tenants have fallen out, or where one of the joint tenants has paid the entire deposit.

                        Comment

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