Here is a question to the blog clinic fast track from Rob who is a tenant.
I was a co-tenant on a joint AST signed in Feb 2017. The joint tenancy was with my husband. It became a periodic tenancy in Feb 2018.
Over the course of 2 years the marriage broke down, and I made the decision to leave the property in April. I served a notice to quit to the landlord at the end of April.
I was advised at the time that a single tenant on a periodic joint tenancy can end the tenancy for all tenants as long as the notice is served correctly.
Although all of the discussions with the landlord were over email or text message, he at no point objected to the notice to quit and provided a good reference.
I moved out on the property in May, and as far as I was concerned the tenancy ended on the 1st June for both tenants. The rent was paid for the whole notice period.
However, my (soon to be ex) husband never moved out of the property.
I advised the landlord in our discussions that if he wished my husband to stay in the property after the 1st of June that they would need to sign a new tenancy agreement as the existing joint one would no longer exist.
I do not know if my husband has paid any rent or not to the landlord since (I believe not). I’ve received no direct contact from the landlord since leaving either.
Last week I received a S21 eviction for the property in both our names from my former letting agent (forwarded by royal mail redirection to my new address). I emailed them as to my knowledge the tenancy no longer existed and provided proof of my new address.
They responded saying they had not been made aware I had moved out or that the tenancy had changed so were issuing a S21 based on the details on file as instructed by the landlord.
So my questions mainly are:
1) Was I right that a single tenant can end a joint tenancy on a periodic tenancy?
2) Am I potentially liable for the rent owed by my husband staying in the property after the tenancy ended?
3) Is there any advice on how I can protect myself against any future claim?
Answer
If you served a valid tenants Notice to Quit on your landlord then, as you say, this will have ended your tenancy after the expiry of your notice period. There is a long series of cases which say that a Notice to Quit served by one tenant will end a tenancy on behalf of all joint tenants.
This only applies though if the tenancy is a periodic one (ie a tenancy which runs from month to month or week to week). A tenants Notice to Quit cannot be used to end a fixed-term tenancy – ie a tenancy for a term of 12 months. But as your tenancy is a periodic tenancy, it can be ended in this way.
There is no prescribed format for a ‘tenants notice to quit’. However, it must be clear and unequivocal and give the proper notice period (which is at least one ‘period’ of the tenancy ending at the end of the period). Although it seems that the courts may allow a degree of flexibility in the notice period.
So it sounds as if your notice was correct and was accepted by the landlord. If the remaining tenant stayed on and the landlord accepted rent from him, then a new tenancy will have been created under s54(2) of the Law of Property Act 1925 (which is explained here). This new tenancy will be between the landlord and the remaining tenant. You are not a party to it.
However, you talk about serving your notice on the landlord but the section 21 notice having been served by the agents. Maybe the landlord did not tell the agents about your notice?
If so this is not a problem – if the notice was served on the landlord then this will be sufficient. To answer your questions, therefore:
1) Was I right that a single tenant can end a joint tenancy on a periodic tenancy?
Yes. As discussed above.
2) Am I potentially liable for the rent owed by my husband staying in the property after the tenancy ended?
No. After the tenancy ended under your Notice to Quit, any subsequent tenancy that may have been created between your former partner and the landlord is between them alone. You can only be liable for rent due up to the end of your Notice to Quit notice period.
3) Is there any advice on how I can protect myself against any future claim?
I suggest you send the agents copies of your Notice to Quit and correspondence with the landlord.
Tell them that in law one tenant can terminate a tenancy during a periodic tenancy by service of a Notice to Quit, and that if your former partner remained in the property after that and paid rent, this will have been a new tenancy between the landlord and your former partner alone.
Go on to say that this new tenancy is nothing to do with you and that they need to amend their paperwork to remove any reference to you.
Then warn them that if proceedings are issued naming you as a defendant you will be applying to the Court to have your name removed from the proceedings and will be asking the court (in view of this correspondence) to award you your costs of doing this on an indemnity basis.
End by suggesting that they take legal advice before proceeding further.
Simon Lazare says
October 21, 2020 at 6:14 PMI would argue that serving the notice to quit can be done by one tenant on behalf of all tenants but that the tenancy itself will only end when the tenants, all of them, do in fact quit, i.e. move out and surrender the tenancy? To allow a tenant to serve notice and surrender a tenancy against the wishes of the remaining tenant(s) does not seem right. I suggest to enable this to work the tenant wishing to extract themselves from the tenancy would need to ensure the remaining tenant(s) will also move out or will enter into a new tenancy. Any other interpretation would appear to render the term Joint and Several practically meaningless, wouldn’t it?
Tessa Shepperson says
October 21, 2020 at 6:22 PMIt may seem unfair but I am afraid that it is established beyond doubt in the case law that one tenant can end a (periodic) tenancy by service of a tenant’s notice to quit. Even if the other tenants are wholly unaware of it.
Simon Lazare says
November 10, 2020 at 5:17 PMDoes this mean any tenancy, with more than one tenant, a tenant can serve notice, walk away, without notifying the other tenants and there is nothing the other tenants or landlord can do? Presumable the only option for the landlord, if the remaining tenants cannot afford the rent, is to evict them for none payment of the rent but based on what if the first tenant terminated the agreement?
Tessa Shepperson says
November 10, 2020 at 5:27 PMOnly during a periodic tenancy. They can’t do this during the fixed term.
If no new tenancy is created (eg under s54(2) of the Law of Property Act 1925) the landlord will have grounds to evict the tenant on the basis that the tenants have ended the tenancy but failed to vacate. However, just now that will take a very long time!
Michael Barnes says
November 21, 2020 at 1:22 PM“To allow a tenant to serve notice and surrender a tenancy against the wishes of the remaining tenant(s) does not seem right.”
The other side of this is “to force someone to remain in a tenancy against their wishes does not seem right”.
The courts have considered this conflict between the desires of those who want to stay and those who want to leave and have come down on the side of those who want to leave.
The reasoning is essentially that the individuals have agreed to be bound by the terms of a contract for a specific time and whilst they can agree to continue to be bound by that contract after the initial period (by not giving notice to end the agreement) it would be inequitable to require them to be so bound for the rest of their lives.
(or, more simply, they have agreed to be bound only for the period stated in the contract and after that period they are free to end the agreement using the mechanisms afforded by law or the contract)
How would you feel if you were still required to pay rent for your first house-share when you are retired?
John Davies says
October 29, 2020 at 7:06 PMWhat would the case be if a tenant served a valid notice to quit in relation to a break clause in the tenancy (rather than in relation to a periodic tenancy) and the notice to quit was accepted in writing by the landlord? Would the tenancy automatically come to an end at the expiry of the notice period even if one of the joint tenants did not move out? Or would this depend on the wording of the tenancy e.g any references to vacant possession being required at the end of a tenancy?
John says
November 4, 2020 at 12:49 AMMy understanding is that a break-clause does not end a tenancy – what it does is end the fixed term, meaning the tenancy from then on becomes periodic and can be terminated by any of the tenants (or the landlord) by giving the correct notice, even if done simultaneously with the operation of the break-clause.
As the break-clause can only be operated during the fixed term it would stand to reason that the terms of the fixed term apply until the break-clause is operated. The terms of the fixed term are that all tenants are bound by it and protected by it so it seems logical that the consent of all would be required in order to remove this protection by operating the break-clause, i.e. one person could not instigate the break.
Anyone disagree?
A related question that bothers me is why people sign one, two and even three-year fixed terms with a six-month break-clause operable by either side. Surely only the tenant should have the ability to break the term, otherwise there’s no actual additional security from signing a longer term in the first place.
Michael Barnes says
November 21, 2020 at 1:08 PMBreak clause correctly exercised by LL ends the fixed term and creates a statutory periodic tenancy (unless tenant moves out).
Break clause correctly exercised by the tenant ends the tenancy, and if tenant does not move out, then they are holding over.
Break clause cannot be exercised by one (actually less than all) of joint tenants; it must be exercised by all the individuals that comprise the tenant.