Joint tenancies and relationship breakdowns

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For anyone cohabiting and going through a relationship breakdown there may several issues regarding living arrangements. Working out how best to approach the situation can be confusing.

If you have a tenancy, the first important step is to work out who holds it. If only one person is named as the tenant then there is a sole tenancy and any other people who may be referred to on the tenancy are regarded as permitted occupiers. A joint tenancy exists where there are two people named as tenants.

If your situation involves a sole tenancy, then only the tenant is entitled to remain in the property and the non-tenant can be asked to leave by the tenant with as little as 24 hours’ notice. Of course, matters become more complicated where the parties are married or in a civil partnership or there are children involved.

The situation potentially becomes more complicated when a joint tenancy is involved. In effect, a joint tenancy means that both parties have a single tenancy with all the rights and liabilities associated with it. Both tenants are responsible for all the rent, rather than 50% each, and both have the right to live in the property.

Despite a relationship has broken down, this does not mean that the person who leaves the property can be removed from the tenancy. They remain a joint tenant and who is liable for all the rent until the Court orders otherwise. However, in a failed marriage, civil partnership or cohabiting relationship, the remaining occupier can apply to the Court for the joint tenancy to be transferred into his or her sole name. If there are children under 18, it may be possible to apply to transfer a joint tenancy into one parent’s name for the benefit of the children. This may be relevant if the parties’ marriage has failed but they are not divorcing. Such an application would be made under the Children Act 1989.

It’s important that joint tenants are aware that, if the tenancy is not a fixed term tenancy or there is a break clause, it only requires one joint tenant to terminate the tenancy entirely by serving a notice to quit on the landlord. In cases where there is domestic abuse, if the person who has left the property gives notice to the landlord without telling their partner then the tenancy will come to an end once the notice to quit expires and there is nothing that can be done to stop this.

Advice can be sought on the possibility of obtaining an occupation order under the Family Law Act 1996 in cases where there has been domestic abuse. Such an order would have the power to exclude the perpetrator from the property and an application can also be made at the same time for a transfer of tenancy order under the same Act. If granted, this would transfer the tenancy into the victim’s sole name.

A reasonable landlord could speak to the remaining tenant about the difficulties they are experiencing and then reissue a tenancy in their sole name, but not all landlords will do this. Ultimately, it’s entirely up to the landlord whether they are willing to do so.

You cannot simply ask your landlord to remove your ex-partner’s name from the tenancy. If the tenancy is not transferred by the Court or the other tenant, the tenancy will have to be terminated and a new tenancy issued and, again, it’s for the landlord to decide whether they agree to this. It is important to note that a tenancy can only be transferred once any rental arrears have been cleared.

Despite the ability of the Court to assist if necessary, transferring a tenancy is not always a contentious issue and we can assist by writing to the other tenant to seek his or her consent to the joint tenancy being transferred.