Verbal notice to quit statutory periodic tenancy claimed by one of joint tenants

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    #16
    Originally posted by ChrisDennison View Post
    Good to know that there is a statutory requirement to serve written notice, this should kill this argument.
    Not necessarily.The statute also provides for a minimum period of notice, but the courts have held that a short notice may be valid. There is a legal maxim that equity will not permit a statute to be used as an engine of fraud. The fraud does not have to be criminal, but can be constructive. Constructive fraud can arise even if there was no intention to deceive. As you concede, the position was presented to the departing tenant in terms that if he served a valid notice his co-tenant would be forced out. However, the failure of the departing tenant to serve a valid notice had the convenient result that you were relieved from making a decision about whether to evict the tenant incurring expense and possibly a void. There was no certainty that the remaining tenant would be forced out.

    I am being a bit of a devil's advocate here as I do not want you to think that the legal position is clearcut. It is entirely possible that your claim will sail through and the departing tenant's argument that the tenancy ended is brushed aside by the judge.

    What your case emphasises is that when it comes to BTL the best policy is to keep things simple and avoid unclear situations.

    Comment


      #17
      Originally posted by Lawcruncher View Post
      What your case emphasises is that when it comes to BTL the best policy is to keep things simple and avoid unclear situations.
      The onus for that is also on the tenant.

      While they're consumers and aren't expected to have any great amount of knowledge, if the agent did actually tell them that they needed to serve notice and that would end the tenancy for both occupants, not doing that must have had some consequence the tenant could foresee.

      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
        Originally posted by jpkeates View Post
        The onus for that is also on the tenant.

        While they're consumers and aren't expected to have any great amount of knowledge, if the agent did actually tell them that they needed to serve notice and that would end the tenancy for both occupants, not doing that must have had some consequence the tenant could foresee.
        I agree, but here it seems the agent fudged it by more or less saying to the departing tenant: "You don't want to put your co-tenant out on the street, do you?" Even if the agent did not say or hint that there was nothing for the departing tenant to worry about, there is still enough for the departing tenant to make a case.

        Ideally the agent should have responded in writing in the following terms:

        Your oral notice to quit is invalid because it was not in writing and the length of notice was too short. The requirements for a valid notice to quit residential property are set out in section 5 of the Protection from Eviction Act 1977 which you can find online here: https://www.legislation.gov.uk/ukpga/1977/43. If you are unsure how to draw up a valid notice to quit you should seek advice from a lawyer or Citizen's Advice Bureau or consult Shelter's website. Until you serve a valid notice to quit the tenancy continues and you remain liable to pay the rent in full and comply with the terms of the tenancy.

        If the agent writes along the above lines and says no more he should have the position covered. He has (a) asserted clearly that the notice to quit is invalid and why (b) backed up the assertion by quoting authority for it (c) directed the tenant to an official website where he can check the law (d) suggested he should take advice before giving a second notice (e) made clear the consequences of failing to serve a valid notice (f) refrained form adding anything which may undermine anything he has said.

        Comment


          #19
          Standard paragraph bemoaning the fundamental inappropriateness and unfairness of joint tenancy agreements taken out in ignorance goes here.
          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


            #20
            In scotland to end a joint tenancy ALL joint tenants must (basically) serve the same notice. Great fun trying to get e.g. students to comply.

            See..

            http://scotland.shelter.org.uk/legal...nts_to_leave#1

            I'm not suggesting this is better or worse, but yet another example of the fundamental inappropriateness and unfairness of joint tenancy agreements taken out in ignorance.
            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


              #21
              Originally posted by jpkeates View Post
              Standard paragraph bemoaning the fundamental inappropriateness and unfairness of joint tenancy agreements taken out in ignorance goes here.
              I would not say that there is anything intrinsically unfair about joint tenancy agreements. Such an agreement is not just an agreement between the tenants and the landlord to commit to a specific period only, but also an agreement between the tenants to commit to a specific period only. What has to be has unfair is a periodic tenancy which a joint tenant cannot get out of without the agreement of the other joint tenant(s). The law quite rightly baulks at any arrangement which can continue indefinitely at the will of one party.

              Comment


                #22
                Originally posted by Lawcruncher View Post

                I am being a bit of a devil's advocate here as I do not want you to think that the legal position is clearcut. It is entirely possible that your claim will sail through and the departing tenant's argument that the tenancy ended is brushed aside by the judge.

                What your case emphasises is that when it comes to BTL the best policy is to keep things simple and avoid unclear situations.
                I think you‘re absolutely right here, and what this also emphasises is that the key is clear communications between landlord and agent, because I find it sad to say the least that the agent didn‘t inform me about this episode so I only know about it now. I no longer work with that agency for other reasons but this shows to me that my decision to part ways was the correct one.

                Comment


                  #23
                  Originally posted by theartfullodger View Post
                  In scotland to end a joint tenancy ALL joint tenants must (basically) serve the same notice.
                  So in Scotland one person can be bound indefinitely against his/her will?
                  Can you point to legislation/judgement on this?

                  Comment


                    #24
                    So quite a bit of a recent development.

                    The tenant has now provided a copy of their written (not verbal!) notice to quit and when I went ballistic with the letting agency they confirmed that they did in fact receive a written notice to quit, they said they had to go through the file to find it, I believe no word they say. Also they didn’t send this on to me so obviously I wasn’t aware of this notice to quit at all.

                    So this means my claim for damages will fail because the original tenancy will have come to an end. A new (sole) tenancy will have arisen by me continuing to accept rent payment from the other remaining tenant.

                    My question - that new tenancy that was created by me accepting rent, what is the term of that? Is that a new AST (the question here is around deposit protection and the other responsibilities of the landlord), is it a monthly rolling tenancy, is it something altogether different?

                    Suffice to say I will now take this letting agency to court to recoup my damages, but I just want to make sure whether the sole tenant would also have a claim against me for deposit protection etc.?

                    Comment


                      #25
                      Your original post said that the tenant had given three weeks notice, which doesn't sound like valid notice.
                      Unless the agent confirmed that the notice was OK - which may or may not make it valid in this case.
                      If the notice wasn't valid, the tenancy didn't end.

                      The new tenancy is most likely to be a new monthly AST and all of the requirements of a new tenancy apply (including for the avoidance of doubt the need to protect the deposit).
                      Hopefully it remained protected from the previous tenancy, so the issue is limited to the PI.
                      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


                        #26
                        Originally posted by MdeB View Post

                        So in Scotland one person can be bound indefinitely against his/her will?
                        Can you point to legislation/judgement on this?
                        Graham v Stirling, 1992 S.C. 90 particularly the comments of Lord Skerrington at 107

                        see...
                        http://scotland.shelter.org.uk/legal...nts_to_leave#1
                        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


                          #27
                          Originally posted by jpkeates View Post
                          Your original post said that the tenant had given three weeks notice, which doesn't sound like valid notice.
                          Unless the agent confirmed that the notice was OK - which may or may not make it valid in this case.
                          If the notice wasn't valid, the tenancy didn't end.

                          The new tenancy is most likely to be a new monthly AST and all of the requirements of a new tenancy apply (including for the avoidance of doubt the need to protect the deposit).
                          Hopefully it remained protected from the previous tenancy, so the issue is limited to the PI.
                          Thanks, I've got a copy of the letter now and it's comfortably more than four weeks from the date it has on it, to the next periodic rent day.

                          My original post was based on what the tenant told me initially but it looks that this was incorrect. Rather than a verbal notice with 3 weeks they actually provided a written notice with more than four weeks. I wonder whether they told me these 'slight untruths' intentionally in case I don't challenge the agency... As I mentioned they obviously got some legal support so maybe that was their objective.

                          ​​​​​Anyways, good to know where I now stand. Yes the deposit remained protected throughout (because I wasn't aware of any of this) and thankfully the flat had been vacated without having to go to court - but I still can't believe how the agency acted. Well what you sow is what you reap - I'm looking forward to taking them to their redress mechanisms and the courts if needs be.

                          Comment


                            #28
                            Of course, there wont have been an Inventory and Condition Check when the other tenant left - nor will there be an Inventory and Condition Report for this "new" tenancy - so problematic to try and prove who did what and when.

                            Comment


                              #29
                              Originally posted by theartfullodger View Post

                              Graham v Stirling, 1992 S.C. 90 particularly the comments of Lord Skerrington at 107

                              see...
                              http://scotland.shelter.org.uk/legal...nts_to_leave#1
                              That judgement does not, on my reading, say that all joint tenants must give notice to end a joint tenancy in Scotland.

                              It appears that in the case before the court, they agreed that on the facts of the case one of the joint tenants could give notice to end the tenancy.

                              regarding the general case:
                              Opinions reserved as to whether one of two or more joint tenants can at his own hand give notice which will be effectual under the statute to prevent tacit relocation, or whether such notice must be given by or on behalf of all the joint tenants.
                              https://www.bailii.org/scot/cases/Sc...59SLR0165.html


                              (Also Shelter got the case reference wrong: it is 1922, not 1992)

                              Comment

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