Here is a question to the blog clinic from Jayne who is a landlord.
My joint tenants emailed me saying they were leaving my property at the end of the 6 month AST. They have decide to separate and one partner and her children have nowhere to go and no income. The local authority have told her to remain in the house, even though the tenancy has ended.
1. Should I serve a Section 21 notice?
2. Will this mean I have acknowledged her as a tenant on a periodic tenancy?
3. If it is a periodic tenancy continuing the AST, does that mean I can pursue the ex partner and lead tenant on the agreement for rent, legal fees etc.
4. Do I have to pay back the deposit, held in the custodial DPS before she leaves the property?
Answer
This is quite a common situation and a very annoying one for landlords. However an ancient law comes to the landlords help here – the Distress for Rent Act 1937 provides that if a tenant gives notice to quit and then remains in the property, you are entitled to receive a double rent. I wrote about this here.
If you notify the tenant of this it may affect her decision to stay.
The other answers to your questions are as follows:
1 Should you serve a Section 21 notice?
If the tenant’s notice is a valid notice to quit then strictly speaking you are entitled to bring proceedings based on that, at the end of the tenant’s notice period. As the notice will have ended the tenancy. So if you want to rely on that and bring proceedings now you need to be careful to ensure that all payments are accepted as ‘mesne profits’ and without any intention to create a new tenancy. Be careful not to refer to them as ‘rent’.
Service of a section 21 notice would imply that the tenant has an AST so if you decide to serve one (which may not be a bad idea) it should be with a covering letter saying that the notice is served as a precautionary measure only and without prejudice to the tenant’s termination of the tenancy by their notice to quit. You may want to get a solicitor to do this for you.
2. Will that acknowledge the remaining tenant as a tenant?
Probably, which is why you need to have the covering letter. However if the tenant’s notice was not a Notice to Quit (and so the tenancy was not ended), then the tenants will automatically have been given a periodic tenancy at the end of the fixed term under section 5 of the Housing Act 1988.
3. Can the other tenant be pursued for rent and fees?
Assuming the tenant’s notice was a genuine notice to quit then it will have ended the tenancy. However as vacant possession was not provided to you, it is arguable that the other tenant is liable in the same way as the remaining tenant (as joint tenants are generally treated as one) in which case you may be able to claim the double rent from them too.
I’m not certain of this though – if any lawyers have a view on this please leave a comment.
4. Should the deposit held with the DPS be returned before the tenant leaves the property?
No. My view is that the deposit should remain with the DPS until the tenants have given up vacant possession and you have had an opportunity to go in and assess the condition of the property.
It would be enormously helpful if “local authorities” were held accountable for giving advice to people not to leave properties when valid notice has been served. The tenants will (almost invariably) be liable for court fees and other legal costs, as well as not being able to pay double the rent, and simply go (further) into debt.
It seems to be commonly offered advice when s21 notices are served, even though that directly contradicts the official policy on the subject.
In this case, by giving notice the tenant has probably made themselves homeless, which will make it more difficult for them to get local authority support.
Firstly, ‘Jayne’, Councils don’t tell people to stay. I could write plenty on my view on this but I’ll try to hold back – simply put; the Council very much wants them to go and find somewhere else; they very much do not want the tenant to stay until they are lawfully evicted without finding anywhere else to go as this would likely lead to the Council having to provide accommodation for them (and they don’t want to do that). They may give the tenant information as to their legal protection from eviction, perhaps to be made use of while they’re finding somewhere else, but are you suggesting Council’s should keep this a secret from tenants?? (In any case I’d personally prefer to be able to stay in my home while I find somewhere else and pay a fairly insignificant £280+ court fee than be stuck in some scummy B&B/hostel potentially miles and miles away from my work/children’s school/life/family)
Anyway, with regard to the actual topic itself I have 2 other points to make – firstly s.3(1) PfEA 77 states that it’s unlawful to evict, otherwise than proceedings in the court…”where any premises have been let as a dwelling under a tenancy which is NEITHER A STATUTORILY PROTECTED TENANCY nor excluded tenancy.” So, if assured tenancies (and ASTs)(stat protected tenancies) are excluded from protection under s.3 PfEA 77, why is it that possession needs to be sought in the courts for the remaining occupier when a tenant’s (or joint tenant’s) NTQ expires, which ends the tenancy, and the tenant (or the other joint tenant) remains in occupation? Can the remaining occupier not ‘simply’ be ‘peacefully evicted’? There doesn’t appear to be any statutory protection under the HA 1988 for tenants when their own valid NTQ has expired as far as I’m aware? So where does the ‘protection’ come from?
My other point re liability for rent when a joint tenant’s NTQ has expired and that joint tenant has left – I cannot see how the joint tenant that has left can be liable for any rent (double rent or otherwise) from the point the NTQ expired and he/she left – the tenancy has ended. I agree that an amount equivalent to the previous rent for ‘use and occupation’ (mense profits) should be charged/payable – but surely that is for the use and occupation by the remaining occupier – not chargeable to a previous tenant, who occupied the property under a tenancy that has now ended and who has now left (and there for doesn’t ‘use’ or ‘occupy’)?