joint tenancy help

[Firefoxdc]

Firstly Hello to everyone.
My partner signed a 6 Month joint tenancy agreement 16 10 2006 to 15 04 2007 with 2 other tenants. In January 2007 a notice to quit at the end of the contract was signed by all 3 tenants and sent to the estate agent.
A letter of confirmation addressed to all 3 tenants was received from the estate agent.

One tenant went back to his family home before the contract ended.
My partner left the tenancy on the 12 of April to move into a housing association property. At their time of leaving there was no damage to the property, no rent arrears and all utility bills etc had been paid.

After waiting a number of weeks she found to her surprise that the third tenant had decided to stay on in the property but had never mentioned this. My partner is now being told by the estate agent that tenants who have left can not have their portion of the bond back until the remaining tenant leaves the tenancy.

Surely it is wrong for the two tenants who have left the property and to their knowledge given the required notice etc to be still liable for this tenancy and not be entitled to their bond returned.

Any advice would be greatly appreciated

[Planner]

Its a difficult situation, if tenant 3 is not letting the agents in to access the property to see if there is any deductions from deposit etc, then I can partially understand where they are coming from, however quite a number of months have now past and the issue with tenant 3 is an issue for the letting agents not tenants 1 and 2 that have left the property.

The letting agents have been negligent in their duties here. What should have happened when it became apparent that tenant 3 hadnt moved is the letting agents should have taken action to remove them through the courts, as this hasnt occured I would suggest that a new AST has been created and therefore the agents should have asked the remaining tenant to top up the depsoit and return the rest to you. Any idea if tenant 3 is now paying x3 rent? or have new people moved in.

As tenant 1 and 2 ended the tenancy correctly, they are entitled to their deposit back. Follow the standard procedure i.e. letter requiring the depsoit to be returned in 7 days, then a letter before action giving a further 7 days. Include the filled in N1 county court form in the letter before action. Rememeber to be a little flexiable with dates due to the postal strike etc.

[MrShed]

They are wrong basically. The joint tenancy has ended. The deposit should be returned to all parties, and then a deposit taken again from the remaining(in fact in law the "new") tenant.

[Firefoxdc]

Thanks very much for your help
Denant 3 did contact the agents and it seems is he staying on under the same agreement that all 3 signed. other people are also living there without contract because the tenant 3 has told the agents that they are relatives (cousins) ?

[MrShed]

Not actually possible to stay under the same agreement. That tenancy has now ended. Tenant 3 now has a new tenancy agreement.

[Firefoxdc]

when the agent accepted the notice to quit, was that a binding thing and tis that why the tenancy should have been renewed for the remaining tenant?

Also would the tanancy change to a Statutory Periodic Tenancy
allowing the contract to stay in force and all 3 tenants still be tied to it

[Planner]

The contract cannot be statutory periodic as one of the prescriped actions under the 1988 housing act has been followed to stop it becoming such by tenant 1 and tenant 2 (i.e. you gave notice to quit!).

There is now a new AST in place with tenant 3 and whoever he has invited to live with him. As the agents are obviously happy to take rent of them, they should be happy to take a depsoit off them. Why on earth should the moved-out tenants be providing the despoit for these three?

The agents have made a complete mess of the situation and are hoping that you are not aware of your rights and their obligations so that they can get out of it.

Simple case of them witholding the deposit and the usual course of action should be followed to regain it.

[MrShed]

A joint tenancy is ended by ANY ONE of the tenants giving notice. The tenancy has ended and a new one began, no question.

[Ed999]

This is not as straightforward as it appears to be on the surface.


Firstly, the tenant cannot end the tenancy during the fixed term, unless:

1. The tenancy agreement contains a "break clause", i.e. a provision expressly authorising the tenant to give notice ending the tenancy during that fixed term (the initial six months); or

2. By a surrender of the tenancy, with the landlord's agreement.

Thus a fixed term tenancy can't be terminated by the tenants unless the agreement allows this or the landlord agrees. If the tenancy does not allow this and the landlord does not agree to a termination, the tenants remain bound by the agreement and liable for the rent.

So although a notice was given, it was seemingly expressed to terminate the fixed term, as it took effect on the last day of the term. This would not be possible, since a fixed term can only expire (by effluction of time): it can't be terminated by notice (if there was no "break" clause in the tenancy agreement).


Secondly, if the tenants wished to move out on the day the fixed term ended, the tenants are not required to give notice to the landlord. This is because the contract between the landlord and tenants ends when the fixed term ends.

This is so even if the tenancy agreement contains a provision (called a "break clause") specifying that the tenant must give notice if he wants to leave. Such a clause only applies where the tenant leaves early, before the end of the fixed term.

But if the tenants stay beyond the fixed term, a periodic tenancy begins. This happens automatically, by operation of law, without either the landlord or the tenant having to do anything.

In this case, at least one tenant did stay on, and a periodic tenancy therefore did arise, and the original tenancy did survive.


To end a periodic tenancy the tenant must give the landlord one period's notice, in writing, expiring on the last day of a period (i.e. expiring on the day before the rent is due). Thus if the tenancy is a monthly tenancy the tenant must give not less than one calendar month's notice. It is best to give the notice a few days early, because it will be invalid if less notice is given than is required.

It would seem to be necessary, therefore, for the original poster to now give notice to the landlord to end the periodic tenancy which appears to have arisen, if he wants his rent deposit back.

If there are no current rent arrears and the property is in good condition (with no dilapidations) then this should not create a problem (but it would be prudent for the original poster to check both points).



Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[MrShed]

Come on Ed, fundamentals!

The tenancy was ended as soon as notice was given, expired, and acted upon by ANY ONE TENANT. This notice I agree was given unneccesarily, but this is in addition to the surrender of the tenancy, not instead of. Plus, two of the tenants then left either prior to the end of the tenancy or at the end of the tenancy. Therefore, once these tenants left this ended the tenancy, whether agreed with the landlord or not. I would strongly argue that a surrender in this case is no different from notice, in that the departure of ANY one tenant ends the tenancy. But, in addition to this, the notice makes this very much strictly so. The act of a tenant giving notice, and then leaving, unquestionably ends the tenancy. Whether this is in addition to a surrender or not is immaterial.

My friends in the legal profession have a saying about things such as this(assuming your point is correct, which I dont believe it to be) - "the spirit of the law". It is pretty much a given that the majority of small claims courts in fact uphold the laws in the spirit in which they were made, rather than the "letter" of the law. By this I mean that small claims courts tend very much to make judgement based upon what the law was intended to achieve, not on loopholes(such as your alleged loophole here) that mean the letter of the law leads to consequences that were clearly never intended. Whether we believe the courts should be able to make this judgement call is a) another debate and b) immaterial, as it is what happens regardless.

Due to this, and again assuming your point is correct(which again I stress I do not believe to be so), there is no way on gods green earth that a court would ever take the view you are making - they will, as I have outlined above, not penalise the tenants for giving more notice than they needed to.

All that said.......I would be interested to know the exact wording of the notice to quit issued OP....as it is not a completely unlogical conclusion Ed has come to, and certainly raises an interesting point or two.

[Planner]

A periodic tenancy will arise unless one of the proscribed actions in the 1988 Housing Act are carried out i.e. either the tenant(s) or landlord gave notice that it shouldnt. Tenant 1 and 2 served notice, therefore a periodic didnt arise. You cant 'cherry pick' this type of document just for the sake of disagreeing. Its got to be read as a whole.

What would be gained by the tenants serving notice again? They did this over 8 months ago in January. Doing it again may imply they have some none existant liability, I would strongly reccomend against this approach.

The standard steps for depsoit return should be followed.

I had a similar argument last month on Landlord Zone Forums which you may be interested in Joint Tenant - One won't leave trouble - LandlordZONE Forums

Which also led to the discovery of a paper on the subject... http://www.painsmith.co.uk/painsmith...es/sharers.pdf

[Firefoxdc]

Thanks you very much for the replies to this thread.

For MrShed i will try to put a copy of the notice given in this thread.

Planner: I read (although not fully yet) with intrest the paper which you posted the link to this does look very helpfull and i will look into it further.

This is one hell of a site, thanks to all.

FFDC

[topletters]

Hi

I would first of all start by checking through the original tenancy agreement, if you still have it, and looking at the section outlining what your deposit would cover. Does it say anything about how the the deposit would be divided up and paid in the event of the tenants vacating the property?

A question that occurred to me here: You say that a notice seeking possession was served which all 3 tenants signed to accept. Yet, I note that one person has continued in occupation well beyond the notice expiry date. Has that remaining tenant been granted a new tenancy in their sole name, or with another party? If so, a brand new tenancy has been created and I would say that the letting agent should refund your portion of the original deposit. If they refuse to do so, I would write to the letting agent giving 14 days to refund the deposit, and that it should warn of your intention to take them to the Small Claims Court should they fail to do so.

Let me know the status of the remaining tenant and I will try and advise further.

Regards

Mark

[MrShed]

Doesnt matter topletters, whether the tenant has been "granted" a new tenancy or not. By him staying and the others leaving, he automatically has a new tenancy. Also, what the tenancy agreement says about this situation is fairly immaterial - the tenancy has ended.

[Firefoxdc]

For Topletters:
You may have missunderstood or i may not have made it clear or indeed i may have missunderstood what you have said ie:

(You say that a notice seeking possession was served which all 3 tenants signed to accept)

Dont know anything about a notice seeking possession. The tenants gave notice to leave the tenancy at the end of the current contract.
If it is allowed i will scan and post all the contract and the notice the tenants gave and the reply from the agent.
Or can make available as pdf for anyone who would like to see them.

Thanks again for your help

[MrShed]

I dont think that will be necessary firefox - we are overcomplicating and overdiscussing the matter now. There is absolutely no question that you are owed the deposit. Take the standard steps to enforce recovery of the deposit(LBA and then small claims).

[Firefoxdc]

Ok Mr shed thanks. What is LBA please