It is a common misconception that, when a joint tenant vacates the premises, their liability in respect of the joint tenancy comes to an end.

Take, for example, a relationship that has broken down or a group of friends who take on a joint tenancy but then one of them moves on. When dealing with claims for possession of premises let in such circumstances, whether it be for arrears of rent or otherwise, we frequently face the response “I don’t live there, so it has nothing to do with me”.

This is very much incorrect. Save for exceptional cases, the joint tenancy will continue and the departing tenant will continue to have responsibilities under the tenancy agreement - including to pay rent - even though they do not reside there, and may not have done so for many years. The tenancy does not become a sole tenancy in favour of the remaining tenant, simply because one of the joint tenants has vacated. We faced this very point in a recent possession claim, and were successful in not only obtaining the order for possession sought by the client, but also a money judgment for the substantial rent arrears against both the resident and the non-resident joint tenants.

What should the departing joint tenant do?

It is the responsibility of the departing joint tenant to notify the landlord, or its agent, should they intend to vacate the property and leave the remaining joint tenant(s) in occupation. Where the landlord is unwilling to grant a new tenancy to the remaining tenant(s) but the departing joint tenant wishes to be absolved from any ongoing responsibilities, he is required to serve notice to quit where the tenancy is periodic, as opposed to still within the fixed term.

There is no requirement for the tenant serving notice to consult with or obtain the agreement of the other joint tenant before serving notice to quit. The notice must, however, comply with any contractual and statutory requirements (for example, it must be for the correct notice period) in order to be valid, as a landlord is unable to accept a defective notice to quit where the notice is served by one joint tenant.

Where a valid notice to quit has been served by one or both joint tenants, the tenancy will come to an end on the date of expiry of that notice. If either of the joint tenants (or any other party) remains in occupation after that date, they do so as trespasser and the landlord is required to commence proceedings for possession of the property on that basis.

In the case of tenancies still within the fixed term, the tenants must negotiate a surrender of the joint tenancy, otherwise the departing joint tenant will continue to be liable under the tenancy agreement until such time as it can serve notice to quit. This will be once the fixed term expires or, where the tenancy agreement makes such provision, when he/she is able to exercise a break clause.

So, what does this mean for landlords?

• Landlords should not assume that, where there are joint tenants, only the tenant in occupation is “the tenant” and has obligations under the tenancy agreement;

• The landlord should, where possible, continue to liaise with the departing/departed joint tenant over matters such as rent arrears, irrespective of any dismissive response they might receive in reply;

• Any notices required to be served, including possession notices and notices of proposed rent increase, should be addressed to and served on both joint tenants;

• The terms of the tenancy agreement should be carefully reviewed to ensure that, where such notices are served, they are lawfully served in accordance with the agreement. For example, the tenancy agreement may provide that notices are validly served if sent to the property address (whether or not either of the joint tenants occupy the property) or that notices must be sent to the last known address for the tenant(s);

• Where possible, landlords should obtain forwarding addresses and email addresses for the departing tenant, so that future correspondence is possible once they have left the property;

• Careful consideration must be given before the landlord accepts a surrender of the tenancy by the remaining joint tenant, in terms of any rights the departing/departed joint tenant has in relation to the tenancy;

• Where possession action is required, all joint tenants must be included as parties to the claim, irrespective of whether or not they reside at the property. Additional searches may be required at that time to locate the current residential address for the departing tenant, to ensure that the possession claim is validly served in accordance with the Court Rules;

• Any money judgment for rent arrears and/or costs is usually enforceable against all joint tenants. This means that, whilst one joint tenant may have little means to clear the debt, the landlord is not without hope where the other joint tenant has vacated the premises some time before and may, for example, have since brought a property which can be used as security for the debt.

KDL Law is a niche Solicitor’s practice specialising in residential landlord and tenant disputes, including possession claims. For further information, please contact Faye Didcote on 01435 897297 or on faye.didcote@kdllaw.com.

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