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Solutions not involving the courts

This content applies to England & Wales

Solutions to deciding who stays in the home in the long term that do not involve the courts.

The tenancy/licence position may be altered without involving the courts, based on housing law principles. The tenancy could be assigned, the tenant could give notice to quit, the tenancy could be surrendered, or one joint tenant or licensee could leave.

Family mediation can help the couple resolve disputes about children or financial matters away from the courts. It is a voluntary process where family members can meet safely in the presence of an impartial and independent family mediator to discuss disputes. It does not aim to help people get back together, but to help them manage their future better.

For more information see Gov.uk – Money and property when a relationship ends.

Assignment and surrender are not available to licensees, as both require a legal interest to be effective.

Assignment

There may be some relationship breakdown situations where one cohabiting joint tenant is willing to assign the joint tenancy to the other cohabiting joint tenant. However, there are often limitations on assignment, so people in this situation must first check whether they have a tenancy that is capable of being assigned. For more information about assignment of tenancies, see the section on Assignment.

Relinquishment

A House of Lords decision has put an end to the practice of relinquishment of joint  tenancies.[1] The House of Lords found that relinquishment is effectively assignment by another name, and so the rules and restrictions on assignment apply equally to a deed of relinquishment (see the section  Assignment for more information about the rules and restrictions on assignment).

Notice to quit

One joint tenant/licensee may decide to give notice to quit to end the tenancy/licence and its liabilities. In this case, the other joint tenant will need to know whether the notice to quit actually brings the tenancy/licence to an end and, if so, what rights s/he might have to remain in the home. Each type of tenancy/licence needs to be considered separately, for further details see the Security of tenure section.

In some circumstances, it may be possible for one joint tenant (but not a licensee) to prevent or remedy the other joint tenant's notice to quit. See 'preventing or remedying a tenant's notice to quit', below, for more information about this.

Basic principle

One joint tenant can end a joint periodic tenancy by unilaterally giving valid notice to quit, ie it can be done without the other joint tenant's knowledge or agreement.[2] If the tenancy is ended in this way, the remaining joint tenant has no legal right to stay in the property. Whether or not a court order is needed to evict the remaining cohabitant depends on the type of tenancy.

It is not possible for one joint tenant to unilaterally end a joint tenancy during a fixed term.

Secure and introductory tenancies

Where one joint tenant serves a valid notice to quit to end a periodic secure or introductory tenancy, there are two important points to note:

  • if the tenant giving notice is relying on being rehoused by the local authority or having the tenancy regranted to her/him as a sole tenant, s/he needs to have written assurance that this will happen
  • there have been findings of maladministration against local authorities who acted on notices to quit from the departing tenant without informing the tenant who will lose her/his home.[3]

Once the tenancy has been ended, the local authority will need to obtain a court order to evict the remaining partner.[4]

The courts have held that the basic principle regarding the ending of a periodic joint tenancy (see above) does not breach the human rights of the joint tenant who did not serve the notice to quit.[5] However if a local authority landlord seeks possession after the notice to quit expires it may be possible for the remaining joint tenant to raise a human rights defence.[6] See the page Public law and human rights defences for more information on this potential defence. One county court, in a non-binding decision, held that where the local authority landlord had 'encouraged' the departing joint tenant, following a relationship breakdown, to serve a notice to quit (and there was no other basis on which the landlord could have obtained possession) an order for possession was a disproportionate breach of the remaining tenant's article 8 rights.[7]

Assured and assured shorthold tenancies

Where there is a fixed-term tenancy with a break clause allowing it to be brought to an end during the fixed term, exercise of the break clause by one joint tenant is insufficient to operate the break clause (see the page on Break clauses and notices for more information about break clauses in tenancy agreements). The other joint tenant can remain in the property and the joint tenancy will continue until the end of the fixed term, at which point a joint statutory periodic tenancy will arise.

Where there is a periodic tenancy, a valid notice to quit served by one joint tenant will end the tenancy.[8] The remaining joint tenant cohabitant has no rights to remain in occupation, and the landlord is not legally obliged to get a court order to evict her/him. If, however, the landlord uses physical force to evict the cohabitant, s/he may commit an offence,[9] so in practice the landlord should obtain a court order (this also applies where a fixed-term tenancy has ended). See the introduction in the Harassment and antisocial behaviour section for more information.

If the joint tenant who has not served notice wishes to remain in the property, s/he is dependent upon the landlord's willingness to grant a new sole tenancy.

However, where the landlord is a private registered providers of social housing (PRPSH) there may be certain cases when it would not be proportionate under article 8 of the of the European Convention on Human Rights to award possession (see under 'Secure and intoductory tenancies' above). PRPSHs are not always treated as public authorities, however where the nature of their functions are such that their actions are of a public nature, their acts are open to a challenge on public law grounds.

Regulated (protected) tenancies

Where there is a contractual fixed-term tenancy, the principle is the same as for assured tenancies (see above). Notice by one joint tenant is insufficient to operate a break clause (see the page on Break clauses and notices for more information about break clauses in tenancy agreements). The other joint tenant can remain in the property and the joint tenancy will continue until the end of the fixed term, at which point a joint statutory periodic tenancy will arise.

Where there is a contractual periodic tenancy, if one joint tenant gives notice, this brings the contractual tenancy to an end and ends that tenant's liability for rent. The remaining tenant becomes the sole statutory tenant.[10] In effect, one joint tenant cannot end the other joint tenant's right to occupy.

Where there is a statutory tenancy, notice to quit by one joint tenant converts a joint statutory tenancy into a sole statutory tenancy, and the other tenant will be able to remain.

For both contractual and statutory tenancies, if the remaining tenant cohabitant does not inform the landlord of her/his intention to remain, the landlord may be able to use case 5 to evict her/him.[11] Case 5 applies if the landlord has contracted to re-let or sell the property as a result of the notice being served, and the court decides that s/he would be seriously disadvantaged if possession was not granted. Where possible, therefore, the remaining tenant cohabitant should inform the landlord of her/his intention to remain in the property following the notice to quit.

Tenancies with basic protection

Notice to quit by one joint tenant will normally end the tenancy. The remaining tenant cohabitant will have no legal right to remain. The landlord will need a court order to evict the remaining cohabitant, but no possession ground needs to be proved.[12] However, if there is a fixed term, it can only be ended if there is a break clause. As a break clause can only be operated by all the joint tenants, notice by one joint tenant will not end the tenancy (see the page on Break clauses and notices for more information about break clauses in tenancy agreements).

Excluded tenancies

Notice to quit by one joint tenant will normally end the tenancy unless there is a fixed-term contract, in which case a break clause is needed. As a break clause can only be operated by all the joint tenants, notice by one joint tenant will not end the tenancy (see the page on Break clauses and notices for more information about break clauses in tenancy agreements). The landlord is not legally obliged to get a court order to evict the remaining tenant, although if the landlord uses physical force to evict, s/he may commit an offence (see the section on Harassment and illegal eviction for more information).

Licences

Notice by one joint licensee will normally bring the licence to an end, unless there is a fixed-term contract, in which case there needs to be a term in the contract allowing for this. Some licences require a landlord to obtain a court order for possession, for example where a couple have a contract to occupy a room in a private sector hostel where services are provided. For licences where this is not required, the landlord may, however, commit an offence if s/he uses physical force to evict.[13] For more details about different types of licences, see the security of tenure section.

Validity of notice to quit

In order for a notice to quit to take effect, it must be valid. The minimum requirements for notice from a tenant/licensee to a landlord are that:

  • it is in writing
  • it is given not less than four weeks before the date on which it is to take effect (it could be longer if the tenancy/licence agreement sets out a longer period of notice), and
  • it must expire at the start or end of a period of the tenancy, unless the tenancy agreement specifies otherwise.

The above is the position for all types of tenancy and licence apart from regulated statutory tenancies and excluded tenancies and licences. A notice to quit will not be effective if it is served during a fixed term tenancy unless the tenancy agreement allows otherwise. For more details about notice requirements, see the security of tenure section.

If the notice to quit is invalid, the landlord or the tenants are entitled to treat it as ineffective and continue with the tenancy until a valid notice is served. However, the landlord and all of the joint tenants can agree to treat the notice as if it were valid, in which case the information in 'notice to quit', above, will apply.[14]

Preventing a tenant's notice to quit

There may be the possibility of preventing the tenant's notice to quit in very limited circumstances:

  • where there is an application for a tenancy transfer under the Family Law Act 1996, it may be possible for an order to be obtained to prevent the tenant cohabitant from serving a notice to quit to end the tenancy
  • where an order is applied for under the Children Act 1989, the same approach may be able to be taken. This possibility is only available to couples with children. See 'Children Act' on the page on Solutions involving the courts.

However, an injunction may be of limited use. If breached, the tenant may be held in contempt of court, and the landlord may be as well, but that may be of little comfort to the non-tenant partner as a notice to quit served in such circumstances is a valid notice.[15]

Surrender

For the tenancy to be surrendered, there must be an unequivocal act by the joint tenants and an intention to end the tenancy, eg the tenants handing the keys over to the landlord and stating they were leaving and the landlord accepting them. It is possible for an invalid notice to quit to show the requisite intention.[16] One joint tenant cannot surrender a tenancy, so unless the landlord and all the joint tenants agree to a surrender, the tenancy will continue.

One joint tenant/licensee leaves

One of the joint tenants/licensees may leave without doing anything about the tenancy/licence. In all cases, the remaining tenant/licensee cohabitant will have a right to occupy, although the details are slightly different according to the type of tenancy/licence. Both joint tenants/licensees will continue to be liable for all of the rent as long as the joint tenancy/licence continues. If the tenant/licensee who has left does not pay the rent, the remaining partner will need to pay the whole rent to prevent possession proceedings being taken by the landlord.

For specific information about particular types of tenancies and licences, see the Security of tenure section.

Secure and introductory tenancies

The tenancy remains a joint secure or introductory tenancy, since only one of the joint tenants has to occupy the home for the tenant condition to be satisfied.[17]

Assured and assured shorthold tenancies

The position is the same as for secure tenancies (see above).[18]

Regulated (protected) tenancies

For contractual tenancies, there is no residence requirement so the joint protected tenancy will remain.[19]

For statutory tenancies, if one joint tenant leaves the home and has no intention of returning, the tenancy automatically becomes a sole statutory tenancy.[20] The remaining tenant will be solely liable for the whole of the rent when this happens.

Tenancies with basic protection

Where there is a tenancy with basic protection, the tenancy will continue. If there is a fixed term, no notice to quit is needed at the end of the fixed term, but the landlord would have to obtain a court order to recover possession. Where there is a periodic tenancy, the landlord would need to serve notice to quit on both joint tenants and obtain a court order for possession.

Excluded tenancies

An excluded tenancy will continue with one joint tenant in occupation, although excluded tenants are more vulnerable to eviction by the landlord if s/he is unhappy with the change. The landlord is not legally obliged to get a court order for possession, but s/he may wish to do so to avoid committing a criminal offence.[21]

Licences

For some licensees, the position is the same as for excluded tenants (see above) and there is no requirement for the landlord to obtain a court order for possession. Many licensees, however, may be entitled to 28 days' notice in the prescribed form and a court order.[22] An example might be a couple with a contract to occupy a room in a private sector hostel where services are provided. For more information on the different types of licences, see the security of tenure section.

[1] Burton v Camden LBC [2000] HL; [2000] EGCS 23.

[2] Hammersmith and Fulham LBC v Monk [1992] AC 478, (1992) 24 HLR 207, HL; Greenwich LBC v McGrady (1982) 6 HLR 36, CA.

[3] Complaint against Hackney LBC, Ombudsman 88/A/979.

[4] s.3 Protection from Eviction Act 1977.

[5] Sims v Dacorum BC [2014] UKSC 63; Harrow LBC v Qazi [2003] UKHL 43.

[6] Manchester CC v Pinnock [2010] UKSC 45; Hounslow LBC v Powell: Leeds CC v Hall: Birmingham CC v Frisby [2011] UKSC 8. 

[7] Chesterfield BC v Bailey, Derby County Court, 22 December 2011 (this case is reported on www.bailii.org).

[8] Hammersmith and Fulham LBC v Monk [1992] 1 AC 478, Newlon Housing Trust v Alsulaimen [1999] 1 AC 313.

[9] s.6 Criminal Law Act 1977.

[10] s.2(1)(a) Rent Act 1977.

[11] Case 5, Sch.15 Rent Act 1977.

[12] s.3 Protection from Eviction Act 1977.

[13] s.6 Criminal Law Act 1977.

[14] Elsden v Pick [1980] 1 WLR 898 CA.

[15] Harrow LBC v Johnstone [1997] 1 All ER 929 HL.

[16] Ealing Housing Association Ltd v McKenzie [ 2003] EWCA Civ 1602 CA.

[17] s.1 Housing Act 1985.

[18] s.1(1)(b) Housing Act 1988.

[19] s.1 Rents Act 1977.

[20] s.2(1)(a) Rents Act 1977.

[21] s.6 Criminal Law Act 1977.

[22] s.3 Protection from Eviction Act 1977.

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