Landlord & Buy-to-Let Magazine Issue 69, November 2016 | Page 28

For latest show news visit www.landlordshow.info feature ask tom ... Resident Agony Uncle, Tom Entwistle, answers readers’ questions. Tom Entwistle is Editor of LandlordZONE® and an experienced landlord of residential and commercial property. Q Joint Tenancy – I had three tenants on a joint tenancy which has now ended. One of them has given me notice but the other two say they are on a “roll-over” tenancy and want to stay. How do I deal with this? So long as your tenancy satisfies the requirements for a joint tenancy: i.e. one tenancy agreement with all tenants on it; all tenants start and end together; all tenants enjoy the property as a whole; and have equal legal interest in it. Tenancies in England are complicated, so a basic knowledge of how they work is always useful for landlords. With devolution in laws are quite different in Wales, Northern Ireland and Scotland. English tenancy law applies only to England, despite some close similarities in the other regions. Although the Law of Property Act 1925 caps joint tenancies at four people, it is possible to have more providing the agreement is properly constructed, which means the usual joint tenancy principles apply: all tenants have joint and several liability. This means that any one tenant, and in most cases, their guarantor, has liability for all the others. A landlord seeking redress can go for one, some or all the tenants, or their guarantors as he deems fit. A tenancy needs to be for a specific term, six or 12 months being common, but longer periods are possible, or they can be for short periods coinciding with the rent payments, which would be termed periodic tenancies. Tenancy periods are measured in calendar months, always running from the first day of the tenancy stated on the agreement to the day before the next tenancy period. For example a six month tenancy starting on the 1st of a month would run to the last day of the month six-months hence. When the term (fixed-term) ends an assured shorthold tenancy (AST) automatically becomes a statutory periodic tenancy (what you have termed a “roll-over” tenancy) on a monthly basis, if the rent is paid monthly. So in that respect your remaining tenants are correct. What complicates matters in your situation is that one tenant has given you notice, I presume in writing. In a joint periodic tenancy this effectively ends the tenancy for all three. To understand this you must appreciate that a joint tenancy is considered as a single tenant in law, despite the fact that there can be up to 4 tenants. You are now faced with an ended tenancy with two occupiers remaining and you have the following options: · Ask the two remaining to sign a new agreement and it’s up to you whether you ask them to pay more rent to match the existing total rent, or you allow them to remain on what they pay now, or they bring in a new replacement tenant. · You could get the vacating tenant to agree to assign his share of the lease to a replacement tenant – this will properly involve a solicitor handling the documentation. · Evict the remainers who now have no right to remain, and start again. In this case the landlord would serve a notice under section 8(1) of the Housing Act 1988 to terminate the tenancy and this must be served to each and every tenant. A single notice to the property will not suffice. The “one out all out” principle is now well established following the Supreme Court’s unanimous decision in Sims v Dacorum Borough Council (2014). Here, an appeal brought by Sims challenged the Court of Appeal’s decision to follow Hammersmith and Fulham LBC v Monk (1992), which stated that a notice to quit given by one of a number of joint periodic tenants is effective to terminate the tenancy. The appeal was based on the argument that this was a wrongful infringement of his rights under the European Convention on Human Rights (ECHR), article 8. Further, in McDonald v McDonald (2016) the Supreme Court has now put the issue of an article 8 defence on Human Rights grounds to rest: the EHCR does not apply to a private individual renting property, in possession claims. An interesting point is that an ancient law - section 18 of the Distress for Rent Act 1737 – allows for landlords having been given proper notice (I would suggest only in writing) and properly accepted, to charge double rent on a daily basis for any period during which the tenant overstays his notice. The 1737 Act, still in force states: “whereas great inconveniences have happened and may happen to landlords whose tenants have power to determine their leases, by giving notice to quit the premises by them holden, and yet refusing to deliver up the possession when the landlord hath agreed with another tenant for the same…and such double rent or sum shall continue to be paid during all the time such tenant or tenants shall continue in possession as aforesaid“. It should be said that this is a little known act which some judges may need to be respectfully reminded of. Up-to-date tenancy agreements for all situations are are available here: www. landlordzone.co.uk/documents If you have a question for Tom, please email [email protected] 26 Landlord & Buy-to-Let Issue 69 • November 2016