Joint Tenancies

We are often asked by landlords about joint tenancies. Particularly where one joint tenant wishes to leave a rented property and gives proper written notice, but the other joint tenant wishes to stay.

Technically, a vacating tenant who gives proper written notice in advance of a contractual end date or Ish, cannot create a situation where the remaining tenant becomes the sole tenant under the lease. That being the case, notice by one joint tenant can be sufficient to bring a contractual tenancy to an end. In terms of common law, this would effectively end both joint tenants right to occupy the property.

However, with residential tenants who have either an assured or short assured tenancy, the position is different. Under the Housing (Scotland) Act 1988, even when a contractual tenancy is brought to an end, a tenant has security of tenure for as long as they continue to occupy the property under what is called a statutory assured tenancy. That can place landlords in a difficult situation where, because the contractual tenancy has ended, the departing tenant cannot be held liable for rent after they leave the property and the remaining tenant may not be in a financial position to pay all the rent for the property.

So what should you do? To avoid potential difficulties, landlords should think about serving notices under Section 33 on the remaining joint tenant (and probably on the departing tenant too, just in case there is a change of heart). Having served the correct notices, the landlord can then remove (or raise proceedings to remove) any remaining tenant. The alternative is to consider negotiating and entering into a new lease with the remaining tenant and perhaps a new joint tenant. Simply ignoring the situation could expose the landlord greater risk of rental default and make recovery of any arrears more difficult.

If you wish to discuss this or any other private tenancy matter, please contact Rory Cowan.