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Joint tenancies

This content applies to England

Where one tenancy is granted to more than one person, the tenants hold the tenancy jointly and are 'jointly and severally liable' under the agreement.

Key features of a joint tenancy

For a joint tenancy to exist:

  • the tenants must be party to the same agreement
  • the agreement must have the same start date for all parties
  • each tenant must have the same interest in the property in terms of extent, nature and duration
  • each tenant must have the same right to possession of the property as the others, ie all are equally entitled to peaceful enjoyment of the entire property and no one may exclude any of the other joint tenants.

This is sometimes expressed as a requirement that the 'four unities' (unity of title, time, interest and possession) must be present for there to be a joint tenancy.

Although each joint tenant has the same right to possession of the entire property as all the others, in practice joint tenants will normally agree between themselves how the property will be occupied (for example, who will occupy which bedroom). These agreements are not binding on the landlord.

Joint and several liability

Joint tenants are 'jointly and severally liable' for all the obligations owed under the tenancy. This means that the landlord can pursue all or just one of the tenants in respect of any obligation that is not fulfilled, for example payment of rent.

Anyone contemplating entering into a joint tenancy, or becoming the guarantor of a joint tenant, should be advised that they could be sued individually by the landlord for all the obligations and rent due under the agreement - eg for the rent debt of defaulting tenants.

The tenant condition

Where it is a condition of the tenancy that the property is occupied as the tenant's only or principal home, this condition needs to be satisfied by only one of the joint tenants.

For information on the tenancy condition, see:

Ending a joint tenancy

A joint tenancy can be ended through the correct service of notice by landlord or tenant(s), or by a mutually agreed surrender.

Landlord's notice

A valid notice served by the landlord in accordance with the legal requirements relating to the particular type of tenancy, on any one of the joint tenants, is sufficient to end the tenancy in respect of all joint tenants.[1]

It is uncertain whether the notice will be valid if it does not identify all of the parties to the joint tenancy.

See Notices for more information on the different types of notice.

Tenants' notice

A valid notice to quit served by only one joint tenant is sufficient to end a periodic tenancy for all joint tenants.[2] Where the tenancy is in a fixed term, all joint tenants must consent to exercising a break clause to terminate the tenancy unless a term of the tenancy explicitly allows for any one of the joint tenants to use the break clause.

See Notices to quit: tenants for more information.

Surrender

One joint tenant cannot surrender a tenancy without the consent of the other joint tenants.[3]

See Surrender for more information on express and implied surrender.

Replacement of joint tenants

If one of the joint tenants leaves the property and another person moves in, the new person will only become a joint tenant if there is an express or implied agreement between all the joint tenants and the landlord that:

  • the original joint tenancy has been surrendered, and
  • a new joint tenancy has been granted.

If there has been no surrender, then the new tenant will be a subtenant or licensee of the existing joint tenants.

The joint tenant who departed will retain all her/his rights and responsibilities under the original contract for as long as it continues.

The only exception to the rule above concerns joint statutory tenancy under the Rent Act 1977 where, if one joint tenant leaves, the tenancy will devolve onto the remaining tenant(s).[4]

Fees

A landlord or letting agent can charge a fee in relation to the surrender and re-grant of the joint tenancy where this is requested by the tenants. With effect from 1 June 2019, a private landlord or letting agent is prohibited from charging a tenant or other 'relevant person') more than £50 (unless the landlord/agent’s reasonable costs are greater) where this is, in connection with an assured shorthold tenancy, licence or tenancy granted to a student by a specified educational institution.[5]

The prohibition does not apply where:[6]

  • the joint tenants signed the tenancy agreement (that is being surrendered) before 1 June 2019
  • a statutory periodic tenancy arises during the year after 1 June 2019.

In these situations, the cap on the fee charged does not apply until 1 June 2020.

For further information about prohibited fees and permitted payments see Tenant Fees.

Succession

If one of the joint tenants dies, the tenancy will continue in the name of the remaining joint tenant(s) under the right of survivorship,[7] regardless of the type of tenancy.

The only exception to the rule above concerns joint statutory tenancy under the Rent Act 1977 where, if the surviving tenant does not reside in the premises, the tenancy will cease to exist on the death of the resident joint tenant.

See Succession: joint occupation for more information.

Assignment

The right of a joint tenant to assign her/his interest in a joint tenancy, and the correct way to do so, will depend on the type of tenancy held - see Rules for different tenancy types for more details about this.

See What is assignment? for general information on assignment,

Relationship breakdown

In case of relationship breakdown, a court can transfer one joint tenant's interest to the other joint tenant's sole name even if the other joint tenant does not agree to it. This can be under matrimonial or family law, or under the Children Act 1989. In some cases, it may be necessary to make an urgent application to court for an injunction to stop a joint tenant from serving notice to quit and ending the tenancy before the transfer of tenancy can be applied for.

The court also has the power to make an occupation order in favour of one joint tenant, excluding any other joint tenant from the property on a short term basis while longer term housing options are explored.

See Married/civil partner: joint tenants and Cohabiting couples: joint tenants for more information.

Tenancy deposits

Any deposit received in connection with a joint tenancy is regarded as one deposit, even if it is made up of individual payments from different joint tenants. In most cases, each joint tenant would contribute an equal share to the deposit, but the concept of joint and several liability means that, for example, if one joint tenant defaults on their rent, the landlord can deduct the outstanding amount from the deposit paid by all.

Statutory protection scheme

A landlord must protect any deposit received in connection with an assured shorthold tenancy in a government-approved tenancy deposit protection scheme and serve the prescribed information. In a joint assured shorthold tenancy, service of the prescribed information to the 'lead tenant' (if one has been nominated) or in a single communication addressed to all the joint tenants will arguably be sufficient. However, the name and contact details of each joint tenant must be included.

Where joint tenants want to claim against a landlord for breach of the tenancy deposit protection rules, all of the joint tenants must apply to the court together. See Section 214 claims for more information.

Cap on amount of tenancy deposit

With effect from 1 June 2019, some private landlords and letting agents are prohibited from charging a tenant, or other 'relevant person', a tenancy deposit greater than:[8]

  • five weeks’ rent, where the total annual rent is less than £50,000
  • six weeks’ rent, where the total annual rent is £50,000 or more.

Where there is a joint tenancy, the cap relates to the total weekly rent for the tenancy. A landlord cannot ask for a tenancy deposit equivalent to five or six weeks’ rent from each of the joint tenants.[9]

The prohibition only applies in connection with a deposit taken in connection with:[10]

  • an assured shorthold tenancy
  • a licence to occupy housing (including to a lodger)
  • a tenancy granted to a student by a specified educational institution.

Any amount over and above the capped amount is a prohibited payment.

The cap does not apply where:[11]

  • the joint tenants/licensees signed the tenancy/licence agreement (or agreed to it) before 1 June 2019
  • a statutory periodic joint tenancy arises during the year after 1 June 2019.

In these situations, the cap on deposits does not apply until 1 June 2020.

For further information about the Tenant Fees Act 2019 and the sanctions against a landlord or agent who has charged a prohibited payment see Tenant Fees.

Options where a joint tenant moves out

Where one joint tenant moves out, a replacement occupier may be asked to pay her/his share of the deposit to the exiting tenant. If the departing tenant has left unpaid bills or caused damage, the landlord may take these costs from the deposit at the end of the tenancy, which means that the tenant who moved out has not had to contribute to any of the liability. In this situation, the new occupier may wish to propose that s/he becomes a joint tenant under a new joint tenancy. This would require the landlord and remaining joint tenants entering into a new joint tenancy agreement, and the return of the initial deposit minus agreed deductions to the original tenants. The original tenants would have to decide between themselves on an appropriate share to return to the departing tenant. The landlord would then take a new deposit and serve new prescribed information on the new and remaining tenants.

Alternatively, if a new joint tenancy is not entered into, the original joint tenancy will continue and the new occupier will usually become a licensee of the original joint tenants, including the one who has left (see 'Replacing a joint tenant' above). In this situation, s/he will be dependent on the remaining joint tenants to refund her/his share of the deposit when the tenancy ends.

Housing benefit/universal credit

The eligible rent for housing benefit or universal credit claimants who are joint tenants but are not in the same household depends on whether or not they come under the local housing allowance (LHA) rules.

Joint tenants who are not in the same household who come under the LHA rules will each receive the appropriate LHA for their individual circumstances. See How LHA is calculated for details.

The eligible rent for joint tenants who are not in the same household who do not come under the LHA rules is an apportionment of the rent payable for the whole tenancy. The apportionment will usually be an equal division of the total rent liability, unless there is evidence to support a different apportionment.

See Size related criteria (universal credit) and Restrictions on eligible rents: social rented sector tenants (housing benefit) for more information.

Where joint tenants are a couple, the eligible rent will be the full contractual rent plus eligible service charges, or the LHA rate where the claimant is subject to LHA rules.

Tenants who are minors

A joint tenancy can be shared between a minor and an adult aged 18 or over, but not between two minors. The adult tenant will hold the legal estate as trustee for both joint tenants. See Tenancies for minors for more information.

Joint licences

Joint licences operate in accordance with the same principles as joint tenancies.

More than four joint tenants

The maximum number of joint tenants that can own a legal interest in land is capped at four.[12] Where more than four individuals are party to a single tenancy agreement, the first four tenants (the 'trustees') hold the legal estate that makes up the tenancy on trust for the remainder (the 'beneficiaries'). Although the beneficial tenants do not hold a 'legal' interest (their interest is held only 'in equity'[13]) they are none-the-less protected by the legislation governing residential tenancies (eg assured shorthold tenancies under the Housing Act 1988).

A beneficiary is not normally jointly and severally liable under the tenancy. This means that, s/he can be pursued only in respect of her/his individual part of the rent (or other individual obligation). However, it is strongly arguable that a tenancy agreement can allow for a beneficial joint tenant to be jointly and severally liable, so it is important to check the agreement carefully.

Normally, a beneficiary cannot serve a valid notice to quit (NTQ) to end a periodic joint tenancy (and it is probable that a tenancy agreement cannot give a beneficiary the power to serve a NTQ). One or all of the trustees can delegate the power to serve a NTQ to a beneficiary. In the absence of such delegation, a beneficiary would need to apply to the court under the Trust of Land and Appointment of Trustees Act 1996 for permission to serve a NTQ.

It is arguable that a beneficial (but not a trustee) joint tenant can leave a tenancy if all the other joint tenants and the landlord agree to this. The agreement would amount to a variation of contract, and, as the beneficial joint tenant did not have a legal interest, a clear and unequivocal acceptance that s/he is no longer bound by the terms of the tenancy would release them from their obligations and protect them from future claims.

In order to terminate a joint tenancy, a landlord must serve notice on (one or all of) the trustees, not on a beneficiary.

[1] Hammersmith and Fulham LBC v Monk [1991] UKHL 6; Doe d. Aslin v Summersett (1830) 1 B & Ad 135.

[2] Hammersmith & Fulham LBC v Monk [1991] UKHL 6; Greenwich LBC v McGrady (1983) 6 HLR 36, CA.

[3] Leek and Moorlands Building Society v Clark [1952] 2 QB 788.

[4] Lloyd v Sadler 1978 QB 774.

[5] para 6, Sch.1, and ss.1, 2, 3 and 28 Tenant Fees Act 2019.

[6] p.8, Tenant Fees Act 2019: guidance for landlords and agents, MHCLG, April 2019.

[7] Hickin v Solihull MBC [2012] UKSC 39; Cunningham-Reid v Public Trustee [1944] KB 602.

[8] para 2, Sch.1 Tenant Fees Act 2019.

[9] p.39, Tenant Fees Act 2019: guidance for tenants, MHCLG, April 2019.

[10] ss.1, 2, 3 and 28 Tenant Fees Act 2019.

[11] p.8, Tenant Fees Act 2019: guidance for landlords and agents, MHCLG, April 2019.

[12] s.34(2) Law of Property Act 1925.

[13] for more on beneficial joint tenants and the law of equity, see 3.002 - 3.004, Woodfall Landlord and Tenant.

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