Joint Contract and Leaving the property

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    Joint Contract and Leaving the property

    Hello everyone,

    I am in a hurry and in a bad situation.

    I want to move out and my flatmate wants to stay. We are not bound by any clause, our contract terminates by 8th September. I want to submit my 2 months' notice period, she wants to stay.

    The agency is pushing me to either quit both (which my flatmate does not want) or to find a replacement for myself or I will be responsible for paying the rent until. Which does not seem ok to me?

    Is there anybody that could help me with what I can do in this situation?

    Thank you, Kami

    #2
    If you are joint tenants and are still in the fixed term until September then I'm sorry to say that you can't serve a valid notice until then and can't offer to surrender the tenancy unless both tenants agree. You are bound to the terms of the tenancy unless you can negotiate. Would your flatmate and your landlord allow you to find a replacement for yourself?

    Comment


      #3
      Hi,

      I would be leaving by the end of the contract. So, I am not allowed to? So, I would be submitting my notice from September + 2 months?

      She wants to find the person by herself.

      Thanks a lot in advance.

      Comment


        #4
        Yes, when the fixed part of the tenancy ends, you serve notice which ends the tenancy for both of you.
        Your flatmate can then negotiate with the landlord/agent to start a new tenancy.
        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


          #5
          Thank you very much!

          Comment


            #6
            You can leave anytime you like e.g. 12:48 today - but remain liable for rent until tenancy ended, which you can do by serving valid notice. Or both of you negotiate with Landlord/agent
            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


              #7
              There are two ways that Section 5(2) of the Housing Act 1988 could be interpreted for a joint tenancy.
              The common belief is as advised above: one of the tenants cannot end their commitment without the agreement of all the tenants before the end of the second month of a statutory periodic tenancy that arises at the end of the fixed term.

              The alternate interpretation (which relies on the meaning of "tenant" when there are joint tenants, and on the meaning of "entitled" (*)) is that one of joint tenants can end their commitment at the end of the fixed term.

              The following is based on the "alternate" interpretation.

              You could try writing to them giving them notice that:
              you do not intend to be bound by the contract beyond the end of the term that you agreed, ad you will vacate the property and return your keys before the end of the term. That means that under Section 5(2) of the Housing ct 1988 the tenant is not exercising its entitlement to remain in possession of the dwelling-house (because that requires all the joint tenants to exercise their entitlement due to S45(3) HA1988), and therefore no statutory periodic tenancy will arise under S5(2) HA1988. As there will be no statutory periodic tenancy to which you are a party you will have no further tenant obligations for the property.

              You should also talk to your flatmate to explain to her that she needs to find someone to "take over" from you at the end of the fixed term, so that she has 2 months to find someone.

              The agent may express concern about the status of the tenancy after the end of the fixed term, but that is not your problem.

              I have no knowledge of the above argument being tested in court, and your main hope is that the agent would not want to be the teat case.


              I also suggest that you contact your MP, Shelter and Generation Rent to explain the situation that you and many other joint tenant find themselves in and ask them to campaign to get S5(2) HA1988 amended to state explicitly how one of joint tenants can end a joint tenancy at the end of the fixed term without the agreement of all the joint tenants..



              (*) If "entitled" means "gets it whether it is wanted or not", then the common belief prevails.
              If "entitled" means "has to claim it to get it", then the alternate interpretation holds.

              Comment


                #8
                MdeB,

                Thank you for that. Where can I found the interpretation of "entitled" and "tenant" for my case? Is it specified in the contract or is this a hole in the law interpretation in general, please? Our agent is super lazy, so I doubt she would sue me for this. If it is not explicitly specified, it is a person against agency at court that should be in my most likely favour anyway.

                This is the interpretation of the "tenant" stated in our contract:



                “Tenant” means anyone entitled to possession of the Property under this Agreement or any subsequent person who has the Tenancy transferred to them legally;

                Thank you in advance, Kami

                Comment


                  #9
                  The interpretation quoted there is MdeB's opinion, which is quite reasonable, but is also, I think, wrong.
                  But I have no greater authority than MdeB, so that's simply my opinion.

                  I don't think your tenancy agreement is going to help you define "entitled", because that comes from the 1988 Housing Act.
                  That definition of Tenant is pretty circular - hopefully somewhere else it defines it as the two of you as named people.
                  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


                    #10
                    Originally posted by Kami_SKVA View Post

                    Thank you for this. Where can I found the interpretation of "entitled" and "tenant" for my case?
                    "tenant", for a joint tenancy, is defined in the housing act 1988 S45(3) as
                    "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"

                    "entitled": only a judge can determine the interpretation of this term. That is why there are alternate possible interpretations of Section 5(2). You chose the interpretation that suits your argument (until a court settles the issue).

                    Comment


                      #11
                      MdeB,

                      Thank you for that. In a case, this does not work, how the periodic joint tenancy works?
                      If my fixed contract ends on 8th September and we have 2 months' notice period:

                      a) can I submit my 2 months' notice period in August, hence it will end the tenancy by 8th October (first month of periodic)? or
                      b) do I have to do it in September, so my contract ends by 8th November? or
                      c) do I have ti do it from the first day of the periodic tenancy agreement, so I would have to move out by 8th December?

                      Thank you so much in advance!
                      Kami

                      Comment


                        #12
                        To be exact, the earliest you can serve notice is 10th September, which means that the earliest the tenancy can be ended by you is 8th December.

                        However, most landlords/agents don't know the regulations - so you'll probably be OK if you serve notice to expire on 8th November.
                        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


                          #13
                          I have just realised that I assumed that your contract was for a fixed term and that there is no provision in the contract for it to continue periodically after the initial term. Post #7 and the following is based on that assumption, but you need to check your contract to be sure.

                          Originally posted by Kami_SKVA View Post
                          MdeB,

                          Thank you for that. In a case, this does not work, how the periodic joint tenancy works?
                          If my fixed contract ends on 8th September and we have 2 months' notice period:

                          a) can I submit my 2 months' notice period in August, hence it will end the tenancy by 8th October (first month of periodic)? or
                          b) do I have to do it in September, so my contract ends by 8th November? or
                          c) do I have ti do it from the first day of the periodic tenancy agreement, so I would have to move out by 8th December?
                          Housing Act 1988 says that you cannot give valid notice to quit on or before the first day of a tenancy. The periodic tenancy is a new tenancy. Therefore you cannot give valid notice to quit before 10 September.

                          The "good" news is that HA1988 also says that the notice clause does not apply to a statutory periodic tenancy, so the notice you need to give
                          is one month ending on the last day of a tenancy period (assuming rent is payable monthly).
                          So you can give valid notice on the 10 September to end on 8 November.

                          If contract says "continues monthly" or similar

                          In this case the 2 months notice clause stands.
                          It is likely that you cannot give valid notice to end at the end of the initial term, depending on the exact wording of clauses, but you can give valid notice to end the tenancy at the end of the first month after the initial term, i.e. 8 October; such notice can be given any time from now to 8 August, but I would give notice by 4 gust to allow time for delivery..

                          In this case, Post #7 is irrelevant.


                          NOTE: "valid notice" mans that the tenancy ends at the end of the notice regardless of the wishes of other joint tenants or the landlord.

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