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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 the sole tenant or licensee could leave.

Family mediation can help families 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 they require a legal interest to be effective. However, joint licensees can, if they both agree, effectively surrender a licence by agreement with the landlord.

Assignment

There may be some relationship breakdown situations where one joint tenant spouse or civil partner is willing to assign the joint tenancy to the other joint tenant spouse or civil partner. 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 on 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 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 have complied with the procedure 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 spouse.[4]

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. 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 (see the page on Break clauses and notices for more information about break clauses in tenancy agreements).

Where there is a periodic tenancy, a valid notice to quit served by one joint tenant will end the tenancy.[5] The remaining joint tenant 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 spouse, s/he may commit an offence, so in practice the landlord should obtain a court order (this also applies where a fixed-term tenancy has ended).[6] See the section on Harassment and antisocial behaviour for more information about harassment and illegal eviction.

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.

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. 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.[7] 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 does not inform the landlord of her/his intention to remain, the landlord may be able to use case 5 to evict her/him.[8] Case 5 applies if the landlord has contracted to relet 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 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 spouse will have no legal right to remain. The landlord will need a court order to evict the remaining spouse, but no possession ground needs to be proved.[9] 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.[10]

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.[11] For more details about different types of licences, see the Security of tenure section.

Public authority landlords

As stated above, a joint periodic tenancy can be ended by one joint tenant unilaterally serving a valid notice to quit on the landlord. The courts have held that this rule does not breach the human rights of the joint tenant who did not serve the notice to quit.[12] However if a public 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. 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.[13]

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, and
  • it is given not less than four weeks before the date on which it is to take effect (the tenancy/licence agreement may require that a longer period of notice be given), 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 or remedying a tenant's notice to quit

It may be possible for a joint tenant spouse or former spouse or civil partner or former civil partner to prevent or remedy the other joint tenant's notice to quit.

Setting aside a notice to quit

It was argued that, where a married joint tenant has given notice, one way to resolve the issue is for the other spouse to apply to the divorce court under section 37 of the Matrimonial Causes Act 1973 to have the notice to quit set aside on the basis that it is a disposal of assets.[15] This possibility was rejected by the House of Lords.[16]

Preventing service of a notice to quit

Because an application to set aside a notice to quit is unlikely to succeed, it is preferable to try to stop the notice being served. One spouse or civil partner can seek an undertaking from the other not to issue notice until the matrimonial claim is dealt with. If s/he refuses to offer such an undertaking, it is possible to apply for an injunction to prevent disposal of assets.[17] It would normally be necessary to show that it was known that one spouse or civil partner intended to serve notice to quit in order to frustrate a claim to the property by the other spouse or civil partner.

If this intention cannot be shown, or in other situations, the non-tenant partner may want to obtain an injunction as a safeguard against the tenant spouse or civil partner serving notice to quit. However, the injunction may be of limited use. If breached, the tenant and/or the landlord may be held in contempt of court, though that may be of little comfort to the non-tenant partner, as a notice to quit served in such circumstances is a valid notice.[18]

If one tenant spouse or civil partner is applying for a tenancy transfer under the Family Law Act, it may be possible for an order to be obtained to prevent the other tenant spouse or civil partner from serving a notice to quit to end the tenancy. For couples with children, the same approach may be able to be taken as part of Children Act proceedings.

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.[19] 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 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 spouse or civil 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.[20]

Assured and assured shorthold tenancies

The position is the same as for secure tenancies (see above).[21]

Regulated (protected) tenancies

For contractual tenancies, there is no residence requirement, so the joint protected tenancy will remain.[22]

For statutory tenancies, if one joint tenant leaves the home and has no intention of returning, the tenancy automatically becomes a sole statutory tenancy.[23] 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.[24]

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

[6] s.6 Criminal Law Act 1977.

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

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

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

[10] s.6 Criminal Law Act 1977.

[11] s.6 Criminal Law Act 1977.

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

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

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

[15] s.37(2)(b) Matrimonial Causes Act 1973.

[16] Newlon Housing Trust v Alsulaimen [1999] 1 AC 313.

[17] s.37(2)(a) Matrimonial Causes Act 1973.

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

[19] Ealing Housing Association Ltd v McKenzie (2003) EWCA Civ 1602 CA.

[20] s.81 Housing Act 1985, s.125(5)(a) Housing Act 1996.

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

[22] s.1 Rent Act 1977.

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

[24] s.6 Criminal Law Act 1977.

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

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