Joint tenancy expires: can some of tenants leave?

[perfecttenancies]

Here's a seemingly absurd situation, but it is genuine.

Start with an AST with several joint tenants, approaching the end of its current term.

Landlord (L) does not wish to increase the rent, therefore does not serve notice and expects tenancy to become periodic.

One set of tenants (T1) wishes to move out on the final date of the current agreement, without serving notice.

This takes everyone by surprise. The other set of tenants, T2, is unable to move so quickly.
(Meanwhile, L does not know what to do at all. Look for new tenants? L is not even sure whether the tenancy has formally come to an end.)

=>
One day after the end of the current agreement, T2 are still living in the property whereas T1 are not.

1.) Are T1 & T2 still jointly and severally liable for the rent, i.e. has the agreement become periodic?

2.) Or are T1 within their rights to move out on the final day of the current agreement without serving notice on anyone?
This would leave T2 and L in a position of uncertainty.
It would deprive T2 of the time required to move or negotiate a new agreement.
It would expose L to financial loss because of the time required to find new tenants, which after all is the purpose of statutory notice. And it would leave L in a position where there are people in the property but no tenancy agreement is in place.

Which is it?

[jta]

I think that when T1 moved out on the final day of the term, as was his right, he then ended the tenancy for T2 as well. T2 and the LL need to agree a new contract. However, I might be wrong. I often am.

[Bel]

Painsmith had a document on sharers tenancies (which they no longer publish so accuracy not guaranteed) which stated what JTA has written.

The remaining tenants have a new tenancy with you, so are liable to pay all rent.

[Paul Gibbs]

note that this means T2 now has a new tenancy - therefore it is in the assured period. T2 are bound for 6 months rent, and L cannot serve a s21 that expires within the fixed term.

L can still serve s 8 notice and/or T2 and L can agree a surrender

[Krispy]

T2 are bound for 6 months rent.

What binds the tenant to 6 months?

[Preston]

Painsmith had a document on sharers tenancies (which they no longer publish so accuracy not guaranteed) which stated what JTA has written.

The remaining tenants have a new tenancy with you, so are liable to pay all rent.

note that this means T2 now has a new tenancy - therefore it is in the assured period. T2 are bound for 6 months rent, and L cannot serve a s21 that expires within the fixed term.

L can still serve s 8 notice and/or T2 and L can agree a surrender

Hi

Sorry, I'm afraid I don't understand the legal basis for this argument.

At common law, occupation by one joint tenant counts as occupation by the whole. My understanding is that unless they all move out, the tenancy continues, in this instance as periodic tenancy. Any one of the joint tenants can end the tenancy unilaterally during the continuing periodic tenancy by service of a valid written notice to quit.

I would be interested in the authority for the alternative argument if anyone is able to expand?

Preston

[Krispy]

Painsmith had a document on sharers tenancies (which they no longer publish so accuracy not guaranteed) which stated what JTA has written.

The remaining tenants have a new tenancy with you, so are liable to pay all rent.

From the Painsmith document

"At the end of a fixed term if one Tenant wishes to stay, but the other Tenant wants to leave, then the Tenant who leaves has no further obligations to the Landlord. *Effectively a new tenancy is created with the remaining Tenant*. A tenant does not have to give notice to leave at the end of the fixed term. If the tenancy agreement tries to enforce such an obligation it is likely to be unfair and therefore void."

* Which answers my previous question

[Preston]

From the Painsmith document

"At the end of a fixed term if one Tenant wishes to stay, but the other Tenant wants to leave, then the Tenant who leaves has no further obligations to the Landlord. *Effectively a new tenancy is created with the remaining Tenant*. A tenant does not have to give notice to leave at the end of the fixed term. If the tenancy agreement tries to enforce such an obligation it is likely to be unfair and therefore void."

* Which answers my previous question

Hi, do they quote any authority for this view?

If there is "effectively a new tenancy", are they arguing that a new AST is created with all that would entail (6 months security for tenant along with 6 months liability for rent, etc)?

Preston

[Bel]

Preston: I do not know that what Painsmith said is accurate

See this thread below where Lawcruncher argues that a statuory tenancy has begun where both T1 & T2 are liable. And CAB says T can walk away

http://www.landlordzone.co.uk/forums...ad.php?t=14028

[Paul Gibbs]

My understanding was that T1 leaving terminates the tenancy - it cannot just be amended to only be between L and T2.

Therefore by T2 staying on and paying rent and L accepting that rent an new tenancy agreement is created and therefore a new assured period.

Its accepted that during the fixed term one T cannot surrender without the consent of all, but here T is not surrendering, he is simply leaving as required by the contract, therefore no notice is required and T1's liabiltiy would cease.

I am not aware of a specific case dealing with this issue, the closest I have found is the provisions where joint tenants fail to deliver up possession at the end of the term. If 1 of them left at the end of the term then it is only the tenant who remains that is liable to L for damages or mesne profits. (Tancred v Christy) - this is an old case and obviously not regarding AST's, however if the above is still good law then the AST requires T to leave at end of term, if T1 does this but T2 does not then I see it as difficult that T1 remains liable and then logical suggestion is that T2 remaining in occupation creates a new AST.

This is just my view, welcome anyone elses thoughts

[perfecttenancies]

Thank you very much indeed.

[perfecttenancies]

My understanding was that T1 leaving terminates the tenancy - it cannot just be amended to only be between L and T2.

Therefore by T2 staying on and paying rent and L accepting that rent an new tenancy agreement is created and therefore a new assured period.

Its accepted that during the fixed term one T cannot surrender without the consent of all, but here T is not surrendering, he is simply leaving as required by the contract, therefore no notice is required and T1's liabiltiy would cease.

I am not aware of a specific case dealing with this issue, the closest I have found is the provisions where joint tenants fail to deliver up possession at the end of the term. If 1 of them left at the end of the term then it is only the tenant who remains that is liable to L for damages or mesne profits. (Tancred v Christy) - this is an old case and obviously not regarding AST's, however if the above is still good law then the AST requires T to leave at end of term, if T1 does this but T2 does not then I see it as difficult that T1 remains liable and then logical suggestion is that T2 remaining in occupation creates a new AST.

This is just my view, welcome anyone elses thoughts

Would I be right in saying that, if T2 stays on (or is forced by circumstances to stay on), T2 would then need to pay the full rent, i.e. the rent for which T1 and T2 were previously jointly and severally liable?

[Preston]

My understanding was that T1 leaving terminates the tenancy - it cannot just be amended to only be between L and T2.

Therefore by T2 staying on and paying rent and L accepting that rent an new tenancy agreement is created and therefore a new assured period.

Its accepted that during the fixed term one T cannot surrender without the consent of all, but here T is not surrendering, he is simply leaving as required by the contract, therefore no notice is required and T1's liabiltiy would cease.

I am not aware of a specific case dealing with this issue, the closest I have found is the provisions where joint tenants fail to deliver up possession at the end of the term. If 1 of them left at the end of the term then it is only the tenant who remains that is liable to L for damages or mesne profits. (Tancred v Christy) - this is an old case and obviously not regarding AST's, however if the above is still good law then the AST requires T to leave at end of term, if T1 does this but T2 does not then I see it as difficult that T1 remains liable and then logical suggestion is that T2 remaining in occupation creates a new AST.

This is just my view, welcome anyone elses thoughts

Hi

I haven't been able to find the authority you quote (is it the 1840 case?) but from what you have said it seems to concern a situation where a tenancy has ended and one or more of the occupants has remained in possession, with the landlord charging mesne profits until their eviction.

In the situation under discussion, though, the tenancy has not come to an end. Section 5(2) of the Housing Act 1988 reads:

(2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—
(a) an order of the court, or
(b) a surrender or other action on the part of the tenant,
then, subject to section 7 and Chapter II below, 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.

It is well established that there can be no surrender without the agreement of all the joint tenants, so in the case in question there has not been a surrender; none of the tenants have served a notice to quit; and there has been no court order.

Section 5(3) reads:

(3) The periodic tenancy referred to in subsection (2) above is one—
(a) taking effect in possession immediately on the coming to an end of the fixed term tenancy;
(b) deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the person who was then the tenant under that tenancy;

So, the periodic tenancy which arises will have the same landlord and the same tenant as before - and in this case the tenant is a joint tenant.

Section 5(4)

(4) The periodic tenancy referred to in subsection (2) above shall not arise if, on the coming to an end of the fixed term tenancy, the tenant is entitled, by virtue of the grant of another tenancy, to possession of the same or substantially the same dwelling-house as was let to him under the fixed term tenancy

So, if there is a clear grant and acceptance of a new tenancy then there will be no continuing periodic tenancy, but it would be necessary to show that this was the clear intention of all the parties. The mere departure of one of the joint tenants would not be taken by the courts as evidence of such an intention. Further, if, as the OP suggests, there is lack of clarity over such fundamental terms as the rent, I very much doubt that in this case a new tenancy has been created.

So, in summary, if the joint tenants wish the tenancy to end and to prevent the creation of a statutory periodic tenancy at the end of the fixed term then, in my view, they must all give up possession, or they must subsequently surrender the tenancy or one of their number must serve a valid notice to quit. Failing this, the joint tenancy continues.

Incidentally, the original OP doesn't say how many joint tenants there were originally. It would be worth clarifying this because if the number was greater than 4, this may have a bearing and more details would be required.

Preston

[perfecttenancies]

Many thanks Preston!

T1 = 2 tenants
T2 = 2 tenants.

[jeffrey]

I prefer:
a. Preston's analysis/advice in post #13; to
b. the advice supposedly proffered by Pain Smith.

Clearly, T can end a fixed-term tenancy by vacating/surrendering without Notice (at end of fixed term only). Here, only some of those comprised in T vacated; so the tenancy continues.