This is a question to the blog clinic from Natalie (not her real name) who is a tenant.
Hi! I’m in an assured shorthold tenancy and 6 months has elapsed out of 12.
My partner unexpectedly walked out on me and is refusing to help with the costs of the house. I am also really not in a position to move (quite severe back injury).
He has signed himself off the lease, but has been informed he needs my signature so i can accept the role as lead tenant, as i am currently listed as tenant two.
It will take me a couple of months before I am literally back on my feet – is he liable to help with the rent if i don’t sign? If i do sign and become liable i’m almost certain I can’t make enough money on time. I’m currently on sick pay and housing benefit and have debts building fast just to cover basic expenses.
We borrowed £2500 from family during our stay here for house improvements and the deposit – he has offered 1200 gbp to be taken off the lease, but has since withdrawn that offer. Please help!
Answer
I am not sure exactly what you mean by saying that your partner has ‘signed himself off the lease’. Generally when you sign a tenancy you are liable under it for the rest of the term.
No changes can be done to the tenancy agreement without your consent as joint tenant.
I assume that the signature you are being asked to make is for a new tenancy as sole tenant. This is not in your interests to sign as once this is signed he will no longer be liable for the rent.
During the fixed term
If the tenancy remains unchanged then the landlord is entitled to claim rent from both you and your partner (even though he is no longer living at the property). Under a ‘joint and several’ tenancy, which you will have, you are both liable for the rent together and individually.
What this actually means is that the landlord, if he goes to court, can sue either both of you together or just one of you for the whole lot.
If you pay all the rent, you may be legally entitled to claim back any rent you paid the landlord over and above your ‘share’ from your former partner. But this would depend on what agreement you had reached with him in the first place (ie when you moved in) about paying the rent.
After the fixed term
When the fixed term of the tenancy has ended, then your former partner can serve a ‘Notice to Quit’ on the landlord which will end the tenancy completely and therefore effectively end his liability under it.
If you then stayed on and paid rent which was accepted by the landlord, a new tenancy would be created automatically under s54(2) of the Law of Property At 1925. However from then on you would be sole tenant and responsible for all the rent.
Note that if you are evicted you may, in view of your particular circumstances (in particular your back injury) be entitled to be re-housed by the Local Authority. You may want to approach them and have a word about it.
Ben Reeve-Lewis says
June 13, 2017 at 8:26 AMThe Local Authority route is a very long shot Tessa I’m afraid. It would depend entirely upon the severity of the back problem and how it affected her abilities to cope if she were to be homeless and I note in there she said she expects to be back on her feet in a couple of months.
Homelessness case workers would expect medical evidence in support and would also seek their own independent medical advice before making a decision.
I’m curious to know why she spent £2,500 on home improvements in a rented home though.
Tessa Shepperson says
June 13, 2017 at 8:57 AMYes, but no harm in asking.
Yes, I did wonder about commenting on th £2,500 improvements (although she says part of that is for the deposit).
If anyone reading this is considering spending serious money doing up someone else’s property I suggest you read this first: http://www.landlordlaw.co.uk/horror/horror-story-they-told-me-i-could-stay-there-long-i-liked
Ben Reeve-Lewis says
June 13, 2017 at 9:39 AMI remember coming across a story back in 2013 where tenants David and Elaine Rolfe spent £20,000 and 11 years converting the two-acre plot of their rented ornate garden with sweeping flower beds and arbours, without the approval of their landlords. The garden was a labour of love and a beautiful improvement but the landlord demanded that the couple pay a £5,000 bill to have the garden dug up and covered with gravel at the end of the tenancy.
Michael Barnes says
June 14, 2017 at 2:11 PMTessa,
You wrote “When the fixed term of the tenancy has ended, then your former partner can serve a ‘Notice to Quit’ on the landlord which will end the tenancy completely and therefore effectively end his liability under it”.
Does that mean that although a joint tenant has contracted for a fixed term, he cannot get out of the agreement for the term plus 2 months (because the HA 1988 says that notice served on or before first day of statutory periodic tenancy is invalid).
Surely that cannot be correct?
Lawcruncher says
June 15, 2017 at 10:48 AM“Does that mean that although a joint tenant has contracted for a fixed term, he cannot get out of the agreement for the term plus 2 months (because the HA 1988 says that notice served on or before first day of statutory periodic tenancy is invalid).
Surely that cannot be correct?”
Assuming the statutory periodic tenancy is monthly, it is. The Act is set up (a) to prevent unscrupulous landlords from obtaining notices to quit from tenants when they sign up and (b) to ensure that a tenant under an assured tenancy has the right to continue in occupation when a fixed tenancy ends. Since the tenant(s) under the new tenancy is/are the tenant(s) at the end of the fixed term, the combined effect of provisions intended to protect tenants and the common law rules means that a joint tenant who has left is committed to two periods of the statutory periodic tenancy.
The only way to avoid the problem is for the tenancy to be a “fixed term plus”, that is expressed to be for a fixed term and then to continue as a monthly (or whatever) tenancy. If that is done, there is no new tenancy when the fixed term expires and a notice to quit can be served to expire at the end of the first period immediately following the end of the fixed term. Note though that a fixed term plus is a tenancy for a minimum term equal to the fixed term plus one period.
Michael Barnes says
June 16, 2017 at 1:10 PMBut S5(2) says “the tenant shall be entitled to remain in possession” (has the right in your words), not “shall be obliged”, which seems to mean that the tenant has to exercise that right.
S45(3) says that in a joint tenancy “tenant” means all of the individuals.
That suggests that all the individuals have to exercise the right to a statutory periodic tenancy for oen to arise, and as a corollary, if one individual chooses not to exercise that right, then no statutory periodic tenancy arises.
Michael Barnes says
June 16, 2017 at 6:11 PMAlso, your comment on “fixed term plus” does not seem reasonable.
It implies that in a 12 month tenancy that then continues annually, an individual in a joint tenancy is bound to at least 2 years if the other joint tenant does not wish to leave at the end of the first year.
In the House of Lords judgement in the case of “Mayor etc. of the London Borough of Hammersmith and Fulham (Respondents) v. Monk (A.P.) (Appellant)”, Lord Bridge wrote
“Hence, 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. In a common law situation, where parties are free
to contract as they wish and are bound only so far as they have
agreed to be bound, this leads to the only sensible result.
Thus the application of ordinary contractual principles leads
me to expect that a periodic tenancy granted to two or more joint
tenants must be terminable at common law by an appropriate
notice to quit given by any one of them whether or not the others
are prepared to concur. But I turn now to the authorities to see
whether there is any principle of the English Law of real property
and peculiar to the contractual relationship of landlord and tenant
which refutes that expectation or whether the authorities confirm
it.”
As far as I can see in that judgement, he found nothing to refute the expectation.
There may, of course, be other judgements or statute that confirm your statement.
Lawcruncher says
June 17, 2017 at 8:50 AMSection 5 is clear that the periodic tenancy arises by virtue of the section. If all the statutory conditions are fulfilled, the new tenancy arises automatically. There is no requirement for the tenant to make an election; if there were the Act would say so and set out the procedure.
By “fixed term plus” (not a recognised term, hence the quote marks) I refer to a tenancy granted in terms such as “for the period of one year and then continuing as a monthly tenancy”. So long as the wording is clear, the tenancy will continue and the periods will be whatever the parties have agreed.
The judgement you quote is relevant to how periodic tenancies, whether contractual or statutory, may be ended by one of two or more joint tenants, but does not deal with the effect of section 5. The position of a joint tenant under a fixed term assured tenancy who has left is unfortunate and is not addressed by the Act.