Here is a (rather long) question to the blog clinic from Mark (not his real name) who is a landlord.
Is it possible to obtain some advise on an issue I am having with a joint lease tenancy in which one tenant has enquired about leaving after the first 6 months and following an initial rejection has stipulated they intend to leave in 3 weeks time.
I issued a 12 month AST signed jointly by 4 tenants and managed by the property agent.
One of the tenants contacted the agent after the first 6 months to express a desire to move out via email to the agent;
“Unfortunately I need to move out of the property earlier than the contracted date of March 2015. I will be looking to move end of November/start of December. We have some possible people we know who might be able to take over the contract, failing that I am happy to advertise the property to find somebody to take over my part of the contract. I would appreciate if you could put this request forward to the landlord and would really hope for a positive response.”
My initial response to this request was to state that the contract had no early release and that I expected the contract to be upheld as it currently stands. I saw no reason for the original agreement not to be upheld.
One month later (Oct 2014) I received a further e-mail from the tenant forwarded on via the agent;
“….I would appreciate if you could contact the landlord again on our behalf. Financially it’s not working out and I need to move back to Scotland due to my house sale falling through and it’s making it very difficult for us to live together when one of us can’t afford to live there. If this isn’t approved I will be paying my mortgage and rent which could result in default payments to the landlord.
Myself and the girls would do the searching in finding someone to take over the contract and the bedroom would be left in the same condition as it was given. I have rented out my property previously to a group of people and when one person had to leave we asked them to find the replacement and it worked well. I know a lot of letting agents in London who have also approved this for others in similar situations.
We have looked after the house and it is in a great condition since we moved in. We haven’t been nightmare tenants and would be very cautious in finding the new tenant. One of the girls actually knows someone who might be able to move in and if that’s the case it would be a friend so we know her and trust her to live in the property. ”
I subsequently contacted the agent to ask why it is that the tenant did not disclose the financial liability she was indicating in the form of a house/mortgage at the on-boarding process. Furthermore I asked for evidence to support a claim of ‘un-affordability’ as the information submitted by the tenant at the on-boarding process did not indicate this was the case. No additional information has been forthcoming from the tenant.
It’s worth noting that I have since had confirmation from the agent that the property mentioned by the tenant is not in fact in the tenants name but in her parents name.
One week after the above e-mail (mid October 2014), I received a further notice from the agent that the tenant had called to inform them that “she is moving in three weeks as she has to pay her mortgage and just cannot afford to stay at the property”.
At this stage I have not received any written request from the tenant to leave on a specific date or a viable proposal to replace with a specific tenant. It is at this stage entirely unilateral. I do not have or know of any written agreement from the other tenants or a specific proposal as to who could take over the tenancy agreement in the event that the tenant chooses to abandon the property in three weeks.
My question is, do I have to accept that the tenant will leave without paying any further rent and look for a replacement or can I hold the tenant(s) liable until the end of the existing contract. This post on Landlord Law Blog would appear to suggest the former which makes me wonder what the value of having a bilateral contract and minimum tenancy agreement is
Does the tenant have to give notice to break the contract early in writing (with a specific date and addressed to me as landlord) and an explicit viable proposal to replace before we can begin consider the tenancy in any way terminated or my current unwillingness, unreasonable.
At the moment I consider that the tenant is simply leaving without providing adequate notice nor having arranged a new tenant. Am I correct in that assessment?
There is an essential difference between the situation in the blog post you refer to above and your case.
In the blog post, there was only one tenant. In your case there are four joint tenants and only one of those joint tenants wants to leave. There is no question of ending the tenancy as a whole, as the other tenants will remain.
A joint and several tenancy is not divisible. All of the tenants are liable to you jointly and individually for all of the rent – whether or not they are all actually living in the property.
There is no way that one of the joint tenants can end her own liability under the tenancy to the landlord by notice or otherwise, during the fixed term. (The situation is different after the fixed term has ended).
So if your lady moves out, that does not affect the rent which will be payable to you. The other tenants will be liable to make up the shortfall, or you can also sue the outgoing tenant for any shortfall. Although if it came to a claim for a CCJ the best option would be to name all the tenants as defendants.
So until this tenancy is ended, the lady who moves out will still be a tenant and liable as a tenant.
One of joint tenants wanting to move out early is not an uncommon problem. There are, as I see it, three main ways to deal with this:
The non co-operation option
You just say to the tenants that they have signed a legally binding tenancy for period x and that you expect to be paid the rent by them – whether or not one of them decides to move out early.
(Note that you cannot force the tenant to actually live there, your entitlement is to be paid the rent).
The new tenant and tenancy agreement option
You agree that if they can find a suitable tenant to take over the outgoing tenants share you will agree to a new tenancy being signed with the remaining tenants and the incoming tenant subject to all your costs being paid, in advance.
The costs would probably include:
- The costs of referencing the new tenant
- The cost of having a new tenancy agreement drawn up
- The cost of having the inventory re-done so the incoming tenant is not held responsible for any damage done before they moved in
- Any additional charges incurred what your letting agents for dealing with this
The lodger option
You agree that the remaining tenants can take in one lodger (to cover the outgoing tenants rent) for the remainder of the fixed term on the understanding that this person will then be added as a tenant to the new tenancy agreement at renewal.
Note that for this option similar expenses to above will probably be incurred at that stage.
Until the new tenancy agreement at renewal is signed, the outgoing tenant will still be liable as a tenant, but assuming her share of the rent is covered by the lodger, you will not need to bring any claim against her.
So long as you are not out of pocket I don’t see a problem in allowing one of joint tenants to move out, and I suggest that you adopt one of the last two approaches.