Joint Tenants - 1 leaves...1 stays but doesn't sign new AST.

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    Joint Tenants - 1 leaves...1 stays but doesn't sign new AST.

    I know similar questions have been asked previously, but there is 1 point that I am not clear on from reading previous posts (so go easy on me please !)

    Situation - Joint tenants in a 6 month AST (England). At the end of the 6 months one gives notice that they will be ending the agreement (so I understand ending the AST for both). The second tenant wishes to stay in the property but instead of signing the new AST which is offered, they simply ignore all communication and continue to pay the rent.

    Question - What are the implications of the landlord continuing to accept the monthly rent ? (since as I understand it there is no longer a written tenancy agreement in place)

    #2
    Is this for college or real life?

    Comment


      #3
      Real life - about to happen to me

      Letting agent that manages on my behalf : "Unfortunately despite assurances and continual chasing, <name> has not arranged completion of his reference checks. Rent has been paid promptly with the next payment due 10/06/17.
      Please could you advise whether you wish to serve Notice on him or permit him to continue."

      Comment


        #4
        It happened to me recently. I suggested to my tenants that the leaver should withdraw his notice, and I would continue to accept rent from his housemate. (The remaining tenant was the lead tenant on the deposit certificate, so he has reimbursed his friend with his half of the deposit.)

        Comment


          #5
          Unfortunately the leaver is leaving because they have split up with their partner (the remainer) so probably not an option (given the neighbours reports of their arguments !) Remaining tenant is also the first named so I assume no need to return the deposit until he leaves.

          Comment


            #6
            This goes to the crux of a VERY long recent thread.

            When exactly did T1 give notice? If they gave notice before the fixed term tenancy ended, and their partner stayed, then their notice was invalid in terms of the periodic tenancy which followed.

            Unless one or other of the tenants give notice again, then both of the original tenants are still the tenant..... and the original tenancy agreement IS still valid (it is now a periodic tenancy).

            You SHOULD accept the rent and write to both explaining that since the other tenant failed to leave and notice was not served after the fixed period ended both are still liable for the rent.

            Then (unless they communicate to rectify the matter) serve a S20 notice on BOTH to end the tenancy. If rent stops, sue them both.

            Comment


              #7
              Originally posted by AndrewDod View Post
              You SHOULD accept the rent and write to both explaining that since the other tenant failed to leave and notice was not served after the fixed period ended both are still liable for the rent.
              I wonder if it might be better if you leave the leaver in ignorance of this, lest he gives notice again?

              Comment


                #8
                Thanks Andrew !

                T1 did indeed give notice before the end of the fixed term (fixed term ends 9th June), so the point about the notice being invalid would seen to be a big help to me.

                Rather than write to them and explain the situation, I can just accept the rent, and if there is any problem in the future then I still have a valid written AST to work to (with 2 Tenants who are both liable for any breach).

                They have been perfectly good tenants for the last 12 months, so I dont feel the need to serve S20 if I dont need to, I just dont want to be in a mess if things go sour in x months time.

                Comment


                  #9
                  and thanks JKO - you responded as I was typing my reply.

                  Comment


                    #10
                    IMO no ind joint T can give NTQ during fixed term. unless all joint t's vacate T on last day of T.
                    During SPT the situation is reversed.

                    Comment


                      #11
                      I don't think it would be wise to simply carry on as if nothing happened.

                      At very least the leaver should be advised that their notice was not valid.

                      If you have provided communication acknowledging receipt of the notice and awareness that they have gone, you could be looking at an expensive and needless court case if things go wrong.

                      Why not offer the remaining tenant a contractual periodic tenancy if their fears are they don't know how long they will stay? Regardless of what is agreed formally once correct notice is served and tenant continues to pay rent which you accept then a tenancy arises anyway regardless of what is signed.

                      Comment


                        #12
                        Originally posted by Wright76 View Post

                        Why not offer the remaining tenant a contractual periodic tenancy if their fears are they don't know how long they will stay? Regardless of what is agreed formally once correct notice is served and tenant continues to pay rent which you accept then a tenancy arises anyway regardless of what is signed.
                        The issue is that the remaining tenant is ignoring all communications from my agent - so I have the choice of 1) ignore and accept rent (if he pays) or 2) start eviction process ...

                        Comment


                          #13
                          Originally posted by rfph1 View Post
                          T1 did indeed give notice before the end of the fixed term (fixed term ends 9th June), so the point about the notice being invalid would seen to be a big help to me.
                          I would advise getting legal advice before relying on the notice being invalid.
                          it MAY be valid if it complied with any notice period in the agreement AND ended at the end of the fixed term.
                          It is certainly invalid if it ended before or after the end of the fixed term.

                          The specific points I think your solicitor should consider are:

                          1. The phrase "the tenant shall be entitled" in Section 5(2) of the Housing Act 1988 and the definition in Section 45(3) that tenant means "all the individuals together" suggest that if one individual does not wish the tenancy to become statutory periodic, then no statutory periodic tenancy will arise.

                          2. In the house of lords judgement in "Mayor etc. of the London Borough of Hammersmith and Fulham (Respondents) v. Monk (A.P.) (Appellant)" Lord Bridge wrote "in any ordinary agreement for an initial term which is to continue for successive terms unless determined by notice, the obvious inference is that the agreement is intended to continue beyond the initial term only if and so long as all parties to the agreement are willing that it should do so".

                          3. In point 2, a tenancy agreement for a fixed term is one that is to continue for successive terms because Housing Act 1988 says so.

                          Two further points:

                          A. The above assumes that the tenancy agreement did not provide for the tenancy to continue on a periodic basis.

                          B. If the notice is valid, then I believe that as soon as rent is accepted from the remaining person, then a new tenancy is created and you cannot evict with S21 before 6 months. But you may be able to avoid creating a new tenancy by advising the remaining person that they are an unauthorised occupier and any payments will be accepted as mesne profit.

                          Comment


                            #14
                            IIRC MdeB was unable to provide Case Law for the assertion that one joint tenant can unilaterally terminate his share of joint T at end of AST fixed term.
                            No one expects departing tenant to be locked in to AST ad inf. Neither can I see why joint tenant is an unauthorised occupier, liable for mesne profit.
                            My suggestion would be to advise leaver tore-serve NTQ, to expire after min 1 rental period to expire at end of rental period. Advise them you will not pursue for SPT rent.
                            Then explain to remainer that his co-tenant has served valid NTQ that terminates T for both on expiry, but you will only liable for 50% rent, if he vacates by expiry date.
                            No one really benefits but the solution would appear to be supported in Law.

                            Comment


                              #15
                              Originally posted by mariner View Post
                              IIRC MdeB was unable to provide Case Law for the assertion that one joint tenant can unilaterally terminate his share of joint T at end of AST fixed term.
                              You are correct. Also those of the opposing view were also unable to provide such case law to support their position.

                              That is why I suggest getting the advice of a qualified legal professional before relying on the notice being invalid.

                              Comment

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