Here is a question to the blog clinic fast track from Clara (not her real name) who is a tenant.
I have a joint AST with one other tenant where joint and several liability applies. We signed the contract in July 2020 with an initial term of 12 months.
I am leaving the country in December and let the landlord know in October, the other tenant is not leaving the apartment and wishes to continue her tenancy.
When I handed in my notice, I had thought that I would not be liable for rent after the end of the first six months (so after January). From the contract:
“1.8. Initial term of the tenancy will be: 12 months (refer to Special clauses individually negotiated between parties)”
“The Landlord and Tenant have the right to bring the tenancy to an end but no earlier than six months from the commencement date of this Agreement by the one giving to the other not less than two months written notice. Upon the expiration of such notice this agreement and everything herein contained shall cease and be void…”
“Early Surrender – There is no provision for either party to terminate the agreement before the expiration of the six months fixed term. Under exceptional circumstances, the Landlord may (but without any obligation), consider a request for the surrender of this tenancy prior to the six month fixed term as described below.”
“If the Tenant intends to vacate at the end of the fixed term or later he must give the Landlord at least two clear months prior notice in writing.”
The estate agency are maintaining that the fixed term is 12 months with a 6-month break clause whereby both tenants would need to consent to terminating the agreement at the end of the six month period.
When I signed the contract, I thought that the fixed term was six months due to the frequent use of this phrase as applied to the initial six month period. Also, the phrase ‘break clause’ is never mentioned in the tenancy agreement.
Do you think it likely that I would be able to claim redress? The agency is a member of TPO.
Answer
The situation about tenants notices is different depending on whether the notice is given before or after the end of the fixed term.
Background law
With a Notice to Quit given to end a periodic tenancy, there is a long string of cases confirming that one of joint tenants can serve this and end the tenancy even if the other tenant knows nothing about it.
However where the notice is served based on a clause in the tenancy agreement during the fixed term, this is not the case, and both tenants have to agree to this.
So it does look as if your notice is not valid as your co-tenant wants to stay, and so you are unable to end the tenancy during the fixed term. You will remain liable with your co-tenant for the rent on a joint and several basis.
Complaining to TPO
If you can show that the agents misrepresented this to you and led you to believe that you alone could end the tenancy via the break clause you may have grounds to complain about them to TPO.
For example, if you asked for a six months tenancy because you knew you were going to leave in December and they said (ideally in writing) something like ‘don’t worry, you will be able to end it after six months’.
And finally
Probably the best thing you can do to save the situation is to find a replacement tenant and try to persuade the agents to either grant a new tenancy or allow your co-tenant to take in the new person as a lodger after you have left.
They should normally agree to a new tenancy but you will probably have to pay the costs of this.
