Here is a question to the blog clinic from Jane (not her real name) whose son is a tenant:
My son lives in a shared house. As he has now finished Uni he wants to move back home.
The letting agency say that he cannot give notice and it has to be all 4 tenants giving notice. They say he has to find someone to replace him and put them in touch with the agents. Is this correct?
Answer
I assume that your son is a joint tenant and has signed the tenancy agreement with the other tenants.
In which case, it depends on whether the fixed term has ended or not.
If the fixed term has not ended
Then no, your son cannot end the tenancy. Even if all the tenants jointly wanted to end the tenancy this could only be done with the consent of the landlord. Signing a tenancy for a fixed term is a binding agreement and cannot be ended unilaterally,
However, if your son can find someone to take his place, the landlord (through his agents) may be prepared to allow this, subject to referencing and maybe provision of a guarantee.
To get your son ‘off the tenancy agreement’ it will require a new tenancy agreement to be signed with the new tenant and the remaining tenants, and it may be necessary to have the inventory re-done at that time.
Your son would be expected to pay for the referencing and other associated costs.
If the fixed term has ended
Then rather strangely, one tenant can end the tenancy for everyone by serving a notice to quit on the landlord (or his agents).
If the remaining tenants want to stay, they will then have to negotiate a new tenancy with the landlord / agents.
I suspect that the fixed term in your son’s tenancy has not ended yet, but you need to check this.
Hi Tessa
Interesting post, especially the bit about after the fixed term has ended one tenant can serve a notice to quit which will end the tenancy for all joint tenants. I am assuming the same applies if there is joint tenancy with only two named tenants (as in a co-habiting couple)?
Question: what happens if the tenant(s) who didn’t serve a notice to quit remains in the property, what are the options for possession for the landlord? S21 or S8 as normal, or does the notice to quit served by the tenant have any bearing?
many thanks
Eva
Yes, this applies to cohabiting couples. Local Authorities often ask wives seeking refuge from an abusive partner to serve a NTQ so they will be able to evict the remaining partner.
If the remaining tenants pay rent which is accepted by the landlord then a new tenancy will be created under s54(2) of the Law of Property Act 1925.
If so then the landlord can evict under s21 after the notice has been served and the notice period expired. Otherwise he will have to use the common law procedure.
And if the remaining tenant pays no rent (or if the landlord does not accept it?), what is the situation then?
It is the same as if the landlord serves a NTQ in the common law tenancy. The landlord can issue proceedings on the basis that the tenancy has ended and the tenant has not vacated. We have the procedure for this on the Landlord Law DIY Eviction Kit.
However the landlord has to be careful not to accept any rent, or only accept payments as ‘mesne profits’ so as not to resurrect the tenancy.
With ASTs landlords cannot serve a Notice to Quit (s5 HA 1988) but a tenant can.
The best is not to accept any payment at all until the ex-tenant has vacated.
Accepting any payment in advance is very risky however you want to call the monies. Even accepted payment in arrear in obviously open to argument.
If the landlord accepts rent and create a new AST, since the tenant will have changed (only the remaining ex-tenant of the previous tenancy will be the tenant under the new tenancy) the “6 months rule” will kick in and the landlord won’t be able to get a possession order under s.21 for 6 months.
Tessa,
Re this bit… “With ASTs landlords cannot serve a Notice to Quit (s5 HA 1988) but a tenant can.” i’m just a bit confused now, cos an S21 *is* a notice to quit..
It isn’t although people often think they are.
A Notice to Quit is a special form of notice which actually ENDS the tenancy.
However in the Housing Act 1988 section 5 provides that Notices to Quit won’t work with assured and assured shorthold tenancies when served by a landlord. Instead we have to use the notices provided for in the act – under sections 8 and 21.
A section 21 does not end the tenancy. However once it has been served and the notice period has expired, a Judge has no choice but to make an order for possession. The tenancy ends when the possession order is enforced, NOT after the service of a Notice to Quit.
That’s interesting. In Scotland, the landlord can issue a Notice to Quit, with a Section 33 notice, and then must take it to the Sheriff’s court for an eviction order if you haven’t vacated on the ish date.
Re this: “The tenancy ends when the possession order is enforced, NOT after the service of a Notice to Quit.”
The landlord wouldn’t be serving a NTQ anyway tho..just an S21 or S8 then..