Options for cohabiting joint tenants

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 is a way that a tenant can transfer their tenancy to another person. An assignment must be made by deed, which is a a written document that has been signed and labelled as a deed and witnessed.  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.

Relinquishment

A House of Lords decision put an end to the practice of relinquishment of joint tenancies. This was where one joint tenant would sign a deed of release rather than a deed of assignment.[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.

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 they might have to remain in the home. Each type of tenancy/licence needs to be considered separately.

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.

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 them as a sole tenant, they need 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 their home[3]

Once the tenancy has been ended, the local authority must 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 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] 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. The other joint tenant can remain in the property and the joint tenancy continues 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 ends 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 them. If, however, the landlord uses physical force to evict the cohabitant, they may commit an offence.[9] The landlord should obtain a court order (this also applies where a fixed-term tenancy has ended).

If the joint tenant who has not served notice wishes to remain in the property, they are 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. 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. 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 continues 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 their intention to remain, the landlord may be able to use case 5 to evict them.[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 they would be seriously disadvantaged if possession was not granted. Where possible, therefore, the remaining tenant cohabitant should inform the landlord of their intention to remain in the property following the notice to quit.

Tenancies with basic protection

Notice to quit by one joint tenant usually ends the tenancy. The remaining tenant cohabitant has no legal right to remain. The landlord needs 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.

Excluded tenancies

Notice to quit by one joint tenant usually ends 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. 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, they may commit an offence.

Licences

Notice by one joint licensee usually brings 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 they use physical force to evict.[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

• 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

• 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 is not effective if it is served during a fixed term tenancy unless the tenancy agreement allows otherwise.

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

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]

For the tenancy to be surrendered, there must be an unequivocal act by the joint tenants and an intention to end the tenancy, for example 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 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.

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 they are unhappy with the change. The landlord is not legally obliged to get a court order for possession, but they 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.

Where there is no agreement between the couple or it is not possible to assign/relinquishment the joint tenancy, the court can decide who should have the tenancy. Under the Family Law Act 1996, a tenancy can be transferred from one cohabitant or former cohabitant to the other.[23] This can only be done in respect of the home that the cohabitants occupied as if they were husband and wife or civil partners. Where the cohabitants have children, a transfer can be made under the Children Act 1989.

With effect from 22 April 2014, there is a single Family Court for England and Wales, bringing together the three previous tiers of the family courts; the High Court, county court and magistrates' court. The Family Court, with very limited exceptions, will deal with all family cases, including applications for protection against domestic violence and matters relating to the matrimonial or family home.[24]

England and Wales is divided into geographical areas, each of which has a Designated Family Centre, which is the principal family court location for each area and to which all applications should be made. In practice, the Family Court can sit at any of the local county courts and magistrates' courts.

The Family Law Act allows the courts to 'vest' a tenancy in one of the partners, rather than ordering the tenant to transfer it. This applies to secure, protected, statutory, assured or agricultural tenancies.[25] Vesting differs from assignment in that the order of the court effectively brings about the transfer of the tenancy from one cohabitant to the other as if it were a conveyance. No deed of assignment/deed or release is necessary when the court orders the tenancy to be vested in the other cohabitant. The provisions apply only to a tenancy of property that actually was the cohabitants' home and not to a tenancy of property that was only intended to be their home.[26]

There are specific criteria that determine who gets the tenancy. The court must consider all the circumstances, including the:

• circumstances in which the tenancy was granted

• respective housing needs and housing resources of the parties and any relevant child. Housing resources include whether either party would qualify for rehousing under homelessness or allocations legislation[27]

• respective financial resources

• likely effect on health, safety and well-being of the two parties and of any child

• respective suitability of the parties as tenants[28]

Compensation

The Act also allows the court to order the cohabitant to whom the tenancy is transferred to pay compensation to the other.[29]

If the court decides to award compensation, it may also direct that either:

• payment of the compensation is deferred until a specific date or until some specific event occurs, for example cohabitation with a new partner, moving home etc

• the compensation is paid in instalments

The court must not use the provisions to delay payment unless immediate payment would cause the new tenant greater financial hardship than the other party would suffer by having the payment deferred or paid in instalments. The directions can be varied at a later date by application to the court.

When deciding on compensation, the court must have regard to all the circumstances, including the:

• financial loss that would be suffered by the person losing the tenancy

• financial needs and resources of the parties

• financial obligations that the parties have or are likely to have in the foreseeable future, including financial obligations to each other and any children

Landlord's objections to a transfer of tenancy

If the court is considering ordering a transfer of tenancy under the Family Law Act, it must give the landlord an opportunity to be heard.[30] The court will take the landlord's view into consideration when deciding whether to order a transfer of the tenancy.

When transfers can be effected

There is no restriction on the date at which a transfer can be made, other than the requirement for the court to take account of all the circumstances of the case.[31]

A parent or guardian of a child or children may seek to have a tenancy transferred under the Children Act. The court can order a tenancy to be transferred to a child or to the parent or guardian caring for the child if it is for the benefit of a child (or children) of the relationship.[32]

One joint tenant is ordered to transfer the tenancy to the other joint tenant spouse following the court order. The transfer can be effected by assignment. The court's order does not bring about the assignment: the partners must ensure that a deed of assignment is executed or the tenancy will not be legally assigned.[33]

If there is a prohibition against assignment in the tenancy, the court can still order one, although it will create a breach of the tenancy conditions. In such cases, the court may be reluctant to make an order where it would constitute a clear breach of the terms of the tenancy.

The court must consider the following factors:[34]

• income, earning capacity, property and other financial resources of both parties now and in the foreseeable future

• financial needs, obligations and responsibilities of both parties now and in the foreseeable future income, earning capacity, property and financial resources of the child

• any physical or learning disability of the child

• the manner in which the child was being or was expected to be, educated or trained

As the transfer is meant to be solely for the child's benefit, the court must not consider matters that specifically relate to the parents' relationship, eg the length of their relationship or their age.

What happens to arrears, rent liability and possession orders when the court orders a transfer will depend on which legislation the transfer is effected by.

Family Law Act

Where the court orders a tenancy transfer, it can also make directions about liabilities and obligations of the tenancy:

• all the rights of the tenancy are transferred, but subject to all covenants, obligations and liabilities[35]

• if the tenant cohabitant was themselves an assignee, then when the tenancy is vested in the other cohabitant, they are bound by any agreements that the tenant cohabitant was bound by, ie agreements that protected the original assignor[36]

• no obligations or liabilities can be imposed on the outgoing tenant on or after the date of the transfer, ie they could not be held responsible for any arrears that accrue after the tenancy has been transferred[37]

The court may also order that both cohabitants are jointly responsible for any arrears or other liabilities existing at the date of the order, although it could alternatively order that one partner indemnifies the other against any such payment of liabilities.[38]

Where there is a possession order in existence at the time of a Family Law Act transfer, the tenancy will remain subject to the order even after the transfer.[39] There will be no need to issue new proceedings, as the new sole tenant will be one of the former joint tenants against whom proceedings were taken.

Children Act

Where a transfer under this Act takes place by way of an order to the tenant to assign the tenancy, the rules on assignment apply. This means that where there are arrears that accrued before the assignment, the original tenants (assignors) and the new tenant (assignee) are both responsible for them (this is because the new tenant (assignee) is also one of the original tenants).[40] Where arrears accrue after the assignment, if the tenancy began after 1 January 1996 the new tenant (assignee) is the only person liable for them.[41] Where the tenancy began before this date, the landlord can take action against the assignee or the assignors.

If there is a possession order in existence at the time of the assignment, the tenancy will still be subject to it. There will be no need to issue new proceedings, as the new sole tenant will be one of the former joint tenants against whom proceedings were taken.

Where a transfer takes place by way of an order to the tenant to relinquish the tenancy, the joint tenant who is relinquishing the tenancy will have no liability for rent or arrears that accrue after the relinquishment. S/he will remain liable for any arrears that accrued before the relinquishment took place. Where the relinquishment takes place during a fixed term, it will have no effect on liability and both the original joint tenants will remain liable for rent and arrears for the remainder of the fixed term.