My tenants (a couple) have split up – Advice required

@ Dave Reaney

I don't know where you get your information from Dave but I am afraid you are 100% incorrect and very wide of the mark. Let's call them Jack and Jill

If Jack abandons Jill during the fixed term and says he is off then he remains liable either until released or the end of the fixed term whichever occurs soonest.

At the end of the fixed term if Jack says he is off, or by his actions it is clear that he no longer has any interest in the tenancy, then he is released as the fixed term has ended. If there has been no communication then I grant you could argue that he is still a joint tenant until he gives notice to terminate his interest in the pperiodic tenancy.

But to suggest that a tenant cannot give notice during the fixed term (even though they do not need to) and is therefore automatically bound by the terms of the automatically arising periodic tenancy is ridiculous. Can you honestly imagine the OFT allowing a situation where in effect a tenant was bound by the terms of the tenancy in such a way?

The Landlord in this case is lucky in that Jack gave him notice which I repeat he did not actually need to do. Any tenants can just leave at the end of the fixed term and in effect surrender and by their actions end the tenancy. They contracted to rent the property for 6 months and leave at the end of the 6 months, end of tenancy.

Jack won't cause any confusion as he does not need to do anything in respect of the periodic tenancy. The liability is now 100% on Jill.

Thank you for your last sentence but after 21 years in this business and being a trainer on the legal side for 18 of them I know exactly how s21 operates and that the LL only seeks to terminate the agreement, not the tenancy which only a Court can terminate on a s21.

"Assuming it was joint tenants, and nothing says it wasn’t, then in no way can the tenant left behind ever be treated as a trespasser"

I disagree, what is a tenant called when they are still in residence after valid notice has expired?

However, as you will see from my last post, I accept that in this situation that doesn't appear to be the case.

FWIW, my comment re s21 was not aimed at you, it was for the original poster.

I don't feel like getting into an argument about contract law with you.

@ Dave

I agree best you don't get into contract law and legal arguments with me Dave. With all due respect your comments are still incorrect.

At the end of an expired notice period the tenant is still the tenant, s21 or s8.

It is only after the Court Order has expired that you can go anywhere near calling the still occupying tenant a trespasser, and even then incorrectly. If they break back in after the bailiff has enforced the Order that is different.

What on earth does FWIW mean - not terribly rude is it?!!!

Reply to the comment left by "Industry Observer " at "29/10/2013 - 09:01":

FWIW - For What It's Worth

Interesting debate by the way.

Here's my view based on the debate between IO and DR

Jack gives notice to end the tenancy even though he doesn't need to because he can simply leave at the end of the tenancy term. On the basis that KJack has served notice to end the tenancy, my understanding is that a periodic tenancy cannot begin because Jack has ended the tenancy for both Jack and Jill. The deposit should be dealt with within 30 days. Jill has no legal right to stay in the property unless a new tenancy is granted.

If my understanding is incorrect, and granted it may be as I've never had this situation, please explain to me why it is incorrect by pointing me to the relevant case law or legislation.
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No time for detail Mark but Jack has certainly ended his own interest as at the end of the fixed term.

Whether he gave notice on behalf of them both or not is relatively immaterial as if Jill remains in the periodic state then s21(4)(a) needed but here I agree with Dave and the tenant would be estopped from causing further loss to the Ll if he wanted to rely on their notice to terminate - if given for both which I doubt but we don't know.

It is here if he did that the nice medieval act comes into play that enables a Ll to legitimately demand double rent.

No more time today but will follow developments.

For sure for safety if any question of a periodic arising fresh protection and PI needed

Reply to the comment left by "Industry Observer " at "29/10/2013 - 09:54":

My understanding was that if one tenant ended a joint tenancy then the joint tenancy is deemed to have ended at the same time. This appears to me to be Dave's understanding too and hence my question/statement at 09:43 above.
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Think you have it the wrong way round Mar it is in the periodic state that a single tenant giving notice is deemed to have given notice on behalf of all joint tenants.

But it all depends on the wording in the agreement decisions on this start on one basis but there is nothing to stop you varying it by mutual agreement. This applies to break clauses and also to periodics. It can be one for all unless you specify otherwise. If they contract (agree) to that then they agree to that term.

Or you can state in the agreement glossary (you do all have one of these as required by the OFT I assume?!!) that notice given by one tenant is deemed to be purely on their own behalf and does not terminate the interests of joint tenants. You just need to be clear who can do what to whom and when.

There is lots of Case Law both ways on this I'll dig some out but not today. The tenants have no divine right to give notice during a fixed term unless there is a break clause or the LL accepts said notice.

Jo clearly states that Jack gave notice "for himself" so that answers that one he was seeking to end his interest at the end of the fixed term and leave Jill behind. If Jo wasn't happy with this nothing he could have done about it anyway as Jack is entitled to terminate his interest.

Can you ask, or can JO please post, what form this notice from Jack took and above all what if anything Jo did about it. Clearly if he accepted the notice as given by Jack then he accepted that Jack was no longer liable at the end of the fixed term (which Jack wouldn't have been whether Jo accepted the notice or not) and that at the end of the term if Jill didn't leave she became a periodic sole tenant.

As I say this all seems pretty simple to me just deal with Jill. Sadly yuou cannot pursue Jack for any of her shortfall as he gave legitimate notice that at the end of the fixed term he had contracted to he was leaving the property and his obligations under the agreement. They would not continue for him in the periodic state, only for her if she stayed on.

Reply to the comment left by "Mark Alexander" at "29/10/2013 - 09:43":

I am leaving this conversation now, but to answer Marks question . . .

'The Tenant' is both Jack AND Jill. The law (1988 HA) requires only one to be in residence for it to be an AST. If one is in occupation at the end of the fixed term then an SPT arises under section 5. Section 5 specifies it is in the same names as the original tenants.

I do appreciate that Mike feels he has the right to be quite offensive in his comments - public forum and all that. I, however, do not have to accept them nor sink to that level.

Dave

I hope you see this before you leave, as first and foremost it is never my intention to be deliberately rude to anyone. If I have accidentally to you then my apologies.

Of course it can be an AST as long as any one of joint tenants is in residence as sole or main residence.

I am extremely familiar with the provisions of section 5 courtesy of the new tenancy arising debate and do you re-serve PI (which you do).

You miss the point Dave. Either of joint tenants has the right to end their interest in the tenancy at the end of the fixed term. If the argument on notice applying to both is correct then the tenancy ended for both Jack and Jill at the end of the fixed term.

If Jill stayed on when she had no right to (depends on the notice wording as to who can give it and on what basis) then she has to be dealt with.

Jack has no liability as he has given notice and vacated. If it applied to both and she didn't he can't be held responsible for that. Just because a periodic tenancy arises - if it did - then it doesn't mean both original named tenants are then liable.

I'm out too