joint tenancy help

[topletters]

Hi

 

My apologies if I misunderstood about the notice I had assumed was issued by your landlord. When you gave notice yourselves to terminate the tenancy it seems you did so in accordance with the contractual term of your tenancy - taking account of the expiry date in April. I therefore believe that your deposit should be refunded - at least the portions for the 2 who have left. The tenancy as was agreed at the outset has clearly ended. I would consider my earlier advice and warn the landlord in writing about possible Small Claims Court action.

 

Regards

[Ed999]

Just spoken to the solicitors here http://www.painsmith.co.uk/painsmithfiles/articles/sharers.pdf

 

and the lady says that the contract stays in force unless ALL TENANTS ACTUALY VACATE as one tenant did not then the statutory periodic comes into force and all 3 remain responsible.

 

 

Thank you for this information / clarification Firefoxdc.

 

This is exactly what I said: the original tenancy still exists, and a statutory periodic tenancy has arisen by reason of one of the tenants remaining in occupation.

 

My original advice remains good. The tenants who have vacated (or either of them) should end the tenancy, by giving the proper notice to the landlord, in writing, as mentioned in my previous post.

 

The landlord has no obligation to refund the rent deposit until this has been done. A court action for return of the deposit will fail so long as the original tenancy still exists.

[Ed999]

What eios troit wrote i.e. that all tenants need to give notice before it is accepted is incorrect. Have a look at the following links from a wide range of sources, all of which show that any tenant in a joint agreeement has the right to give notice to end that agrement.

 

 

You need to make a clear distinction between a fixed term tenancy and a periodic tenancy.

 

It is NOT possible for any tenant to give notice to end a fixed term tenancy. They cannot be ended by notice. (The situation is different if there is a "break clause", but there is not one in this case.)

 

In a periodic tenancy, ANY tenant can give notice to end the tenancy, and the notice will be valid if it complies with all the usual requirements (i.e. at least one period's notice, expiring on the day before a rent day).

 

You CANNOT give notice to terminate a tenancy which does not exist. Therefore there is no point giving notice to terminate a periodic tenancy during the existance of the fixed term as happened here, as that was a point when no periodic tenancy existed.

 

Also, it will do no good in court pretending that the o/p intended to terminate the periodic tenancy by notice, when it is clear from his statements that it was the intention of all the tenants, at the time when that notice was given, to vacate the property on the expiry of the initial fixed term.

 

They never contemplated that any periodic tenancy would arise. So they cannot now say they intended the notice to terminate such a tenancy.

[MrShed]

I would be interested to see where the relevant acts of law either EXPLICITLY state that fixed term tenancies are exempt, or where it explicity ONLY states periodic tenancies. Until I see this, I wholly disagree with what you are saying Ed.

[Planner]

Ed999 - What periodic tenancy? The tenants give notice that they will be moving out at the end of the fixed term, and did so. This is 2 of the clear actions in the 1988 housing act that stops a periodic tenancy arising. You seem to be under the impression that they have given notice to stop the fixed term early? when in fact they have given notice they will be moving out so that a periodic DOESNT arise. Here are the key parts of the act relevant here;

 

5 Security of tenure

 

(2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—

(a) an order of the court, or

(b) a surrender or other action on the part of the tenant,

then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section.

 

So at the end of the fixed term a periodic automatically arises. No argument there. We move on;

 

(3) The periodic tenancy referred to in subsection (2) above is one—

(a)taking effect in possession immediately on the coming to an end of the fixed term tenancy;

(b) deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the person who was then the tenant under that tenancy;

© under which the premises which are let are the same dwelling-house as was let under the fixed term tenancy;

(d) under which the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy; and

(e) under which, subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy.

 

Okay - explaining the terms and details of the fixed tenancy that arises. We move on;

 

(4) The periodic tenancy referred to in subsection (2) above shall not arise if, on the coming to an end of the fixed term tenancy, the tenant is entitled, by virtue of the grant of another tenancy, to possession of the same or substantially the same dwelling-house as was let to him under the fixed term tenancy.

 

This will be key later on. On to the juicy bits;

 

(5) If, on or before the date on which a tenancy is entered into or is deemed to have been granted as mentioned in subsection (3)(b) above , the person who is to be the tenant under that tenancy—

 

This is saying during the fixed term portion of the tenancy, the person who is the tenant (so thats tenant 1 or tenant 2 or tenant 3 or any combination of 1,2,3)

 

(a) enters into an obligation to do any act which (apart from this subsection) will cause the tenancy to come to an end at a time when it is an assured tenancy, or

 

This would refer to ending the tenacy during the fixed term via a break clause or agreement of the landlord to end the tenancy, so not relevant here.

 

 

(b) executes, signs or gives any surrender, notice to quit or other document which (apart from this subsection) has the effect of bringing the tenancy to an end at a time when it is an assured tenancy,

the obligation referred to in paragraph (a) above shall not be enforceable or, as the case may be, the surrender, notice to quit or other document referred to in paragraph (b) above shall be of no effect.

 

There it is. Notice was given so that paragraph (a)taking effect in possession immediately on the coming to an end of the fixed term tenancy- SHALL NOT BE ENFORCEABLE i.e. NO PERIODIC ARISES.

 

Ed999 -According to your reasoning there is no shuch thing as a 6 month or 12 month fixed term contract. The contracts are either 6 months fixed term + 1 month periodic or 12 months fixed term + 1 month periodic, as you have stated - You CANNOT give notice to terminate a tenancy which does not exist. Therefore there is no point giving notice to terminate a periodic tenancy during the existance of the fixed term as happened here, as that was a point when no periodic tenancy existed.

 

How does one go about stopping a periodic tenancy arising then Ed? this is frankly rubbish.

[Planner]

Ed999 - Im still waiting for you to tell us how to stop a periodic tenancy arising in light of your last comment;

 

You CANNOT give notice to terminate a tenancy which does not exist. Therefore there is no point giving notice to terminate a periodic tenancy during the existance of the fixed term as happened here, as that was a point when no periodic tenancy existed.

 

Well, how does a tenant stop a periodic arising at the end of the fixed term Ed999?