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Resident Agony Uncle, Tom Entwistle,
answers readers’ questions.
Tom Entwistle is Editor of LandlordZONE® and an
experienced landlord of residential and commercial property.
Q
Joint Tenancy – I had three
tenants on a joint tenancy
which has now ended. One
of them has given me notice but the
other two say they are on a “roll-over”
tenancy and want to stay. How do I deal
with this?
So long as your tenancy satisfies the
requirements for a joint tenancy:
i.e. one tenancy agreement with all
tenants on it; all tenants start and
end together; all tenants enjoy the
property as a whole; and have equal
legal interest in it.
Tenancies in England are complicated,
so a basic knowledge of how they work
is always useful for landlords. With
devolution in laws are quite different in
Wales, Northern Ireland and Scotland.
English tenancy law applies only to
England, despite some close similarities
in the other regions.
Although the Law of Property Act 1925
caps joint tenancies at four people, it
is possible to have more providing the
agreement is properly constructed,
which means the usual joint tenancy
principles apply: all tenants have joint
and several liability. This means that
any one tenant, and in most cases,
their guarantor, has liability for all the
others. A landlord seeking redress can
go for one, some or all the tenants, or
their guarantors as he deems fit.
A tenancy needs to be for a specific term,
six or 12 months being common, but
longer periods are possible, or they can
be for short periods coinciding with the
rent payments, which would be termed
periodic tenancies.
Tenancy periods are measured in
calendar months, always running from
the first day of the tenancy stated on the
agreement to the day before the next
tenancy period. For example a six month
tenancy starting on the 1st of a month
would run to the last day of the month
six-months hence.
When the term (fixed-term) ends
an assured shorthold tenancy (AST)
automatically becomes a statutory
periodic tenancy (what you have termed
a “roll-over” tenancy) on a monthly
basis, if the rent is paid monthly. So in
that respect your remaining tenants
are correct.
What complicates matters in your
situation is that one tenant has given
you notice, I presume in writing. In a joint
periodic tenancy this effectively ends
the tenancy for all three. To understand
this you must appreciate that a joint
tenancy is considered as a single tenant
in law, despite the fact that there can be
up to 4 tenants.
You are now faced with an ended
tenancy with two occupiers remaining
and you have the following options:
· Ask the two remaining to sign a
new agreement and it’s up to you
whether you ask them to pay more
rent to match the existing total rent,
or you allow them to remain on what
they pay now, or they bring in a new
replacement tenant.
· You could get the vacating tenant to
agree to assign his share of the lease
to a replacement tenant – this will
properly involve a solicitor handling
the documentation.
· Evict the remainers who now have no
right to remain, and start again. In this
case the landlord would serve a notice
under section 8(1) of the Housing Act
1988 to terminate the tenancy and
this must be served to each and every
tenant. A single notice to the property
will not suffice.
The “one out all out” principle is
now well established following the
Supreme Court’s unanimous decision
in Sims v Dacorum Borough Council
(2014). Here, an appeal brought by
Sims challenged the Court of Appeal’s
decision to follow Hammersmith and
Fulham LBC v Monk (1992), which
stated that a notice to quit given by
one of a number of joint periodic
tenants is effective to terminate the
tenancy. The appeal was based on the
argument that this was a wrongful
infringement of his rights under the
European Convention on Human
Rights (ECHR), article 8.
Further, in McDonald v McDonald
(2016) the Supreme Court has now
put the issue of an article 8 defence
on Human Rights grounds to rest:
the EHCR does not apply to a private
individual renting property, in
possession claims.
An interesting point is that an ancient
law - section 18 of the Distress for Rent
Act 1737 – allows for landlords having
been given proper notice (I would
suggest only in writing) and properly
accepted, to charge double rent on a
daily basis for any period during which
the tenant overstays his notice.
The 1737 Act, still in force states:
“whereas
great
inconveniences
have happened and may happen to
landlords whose tenants have power
to determine their leases, by giving
notice to quit the premises by them
holden, and yet refusing to deliver up
the possession when the landlord hath
agreed with another tenant for the
same…and such double rent or sum
shall continue to be paid during all
the time such tenant or tenants shall
continue in possession as aforesaid“.
It should be said that this is a little
known act which some judges may
need to be respectfully reminded of.
Up-to-date tenancy agreements for all
situations are are available here: www.
landlordzone.co.uk/documents
If you have a question for Tom, please email [email protected]
26 Landlord & Buy-to-Let Issue 69 • November 2016