UK Landlord Forum / Life

I have a couple of tenants who will move out soon although the contract has not been mutually agreed to end . They are going to withhold payment of their rent from the day they leave till end of the contract with is end of July this year . There is one tenant remaining in the house and does not wish to leave .
I need some advice please on the next step to take and how to take them !
Thank in advance

What kind of tenancy or tenancies do they have? You mention 3 tenants, are they on the same tenancy or separate? The type of tenancy or tenancies dictates how you treat them leaving/not paying rent etc?
Then you would have to mutually agree on a move out date and why do they intend to withold rent payment? If it's a fixed term AST then they are liable for rent up to the end of the contract date (unless new tenants take over in that time).
Have you done all the necessaries with providing the required info before they moved in, protected deposit (s) etc? I assume the tenants who want to go, expect their deposit back but how can you release it if they want to withhold rent and if each tenant's deposit was taken together and not protected separately?
It's a lot to sort out.

They are all joint tenancy . And it's a fixed AST .
I had a thread earlier ( tenant w mental health issues ) which has now progressed into 2 out of 3 actually leaving and withholding rent because they say the mentally ill one is making them feel unsafe .  So I am now going down the legal route , credit control have already been in touch w them .

I see. I thought that the general advice for tenants was not to withold rent and clearly they are not achieving anything by doing this.
If their deposits were taken together and protected together and not individually then you would normally have to return the entire amount then the one who wants to stay will have to give her portion back to you for reprotection etc. and her own tenancy?

I won't be returning any deposit !  They are in effect abandoning  the tenancy so still liable for rent . The deposit is the last thing I am thinking about but u have a good  point . The agency dealt w all that so I don't know how it was protected . Presumably under one umbrella as it's a joint tenancy .
Does any know or can recommend a litigation law company which doesn't cost all four limbs . I've been recommended one that costs £250 ph plus vat ??!!!

I figured the good Dr Honey would be back and the two tenants wanting to leave would not stay in the property and they certainly would not cough up the outstanding rent.

EPS’s advice is actually inaccurate you do not pay the deposit to the tenant that wants to stay but you repay it to the lead tenant as named on the deposit record.  There is no apportioning of payments between the three tenants NORMALLY as they are all treated as one Tenant.  However from previous post by DrHoney it seems there may some nonstandard terms in his/her tenancy agreement (it doesn’t seem the tenants are joint and severally liable(??)), without a clearer understanding hard to be sure but you don’t do as per the prior post indicates.  In any case you would deduct the outstanding rent so likely nothing to return.  But for completeness.. you only return deposit when the Tenancy ends - if one tenant remains the Tenancy hasn’t ended... so why even think about deposit return.

DrHoney your  previous craziness of explaining to incoming tenants there is a nut job in the room next door and so preventing the other tenants finding a replacement was quite frankly beyond belief!!    you couldn’t possibly have expected that to work?

You don’t seem to feel comfortable getting new tenants whilst the mentally challenged lady is in occupation (rightly so).
Therefore your best course of action is (still and always was) to evict the tenant that wants to stay/or convince them to leave ASAP (hence it would have been useful to have her liable for the full rent) then clean things off and start again.

You can try chasing the other tenants for unpaid rent  - if you are paying someone to do it they will take their cut, but that activity is now a parallel course of action to the steps you need to take to get the property fully occupied again.

You need to focus and prioritise....!! 

Seems I typed my post whilst DrHoney was replying.

Chasing a tenant can seriously expensive in time and emotion as well as money and with typically low yield.
You are better off trying a debt recovery firm that takes a cut of what they recover rather than paying out up front, but neither will be “cheap”.

Maybe you could clarify the value at stake (less the deposit?).

If you accept that the tenancy ends at a certain date, then you are not entitled to any rent after that period to the end of the fixed term. So for example, you can't grant the remaining tenant a new tenancy from the date the other two leave and then try and claim from the deposit rent for the remaining fixed term. That does mean if you don't grant a new tenancy, all three are jointly and severally for the rent. And if the remaining tenant stays on beyond the fixed term without a new tenancy being explicitly granted to only him, all three will be the tenant for the subsequent statutory periodic tenancy for at least two period. If rents are unpaid in such a case, you can sue any number of them for it as you wish.

Quote from: DrHoney on February 05, 2019, 08:57:46 PM
Does any know or can recommend a litigation law company which doesn't cost all four limbs . I've been recommended one that costs £250 ph plus vat ??!!!

If you're in central London (but not City), that's like the guideline rate for solicitors with between 4-8 years experience. A bit OTT though if you're outside London.

KTC - I agree with your post but in the previous question that DrHoney started he clarified the tenants were not jointly and severally liable... I don't know how that is but maybe there is something novel in the Tenancy agreement. 
I asked DrHoney to check this (twice) and he confirmed they were not. Hmmmmm...

It seems that previous outgoing tenants were responsible for bringing the current tenants together (?) so maybe there is an new construct.

That would be an unusually drafted contract. :-/ (I don't see confirmation from DrHoney in the other thread on a quick scan, private message?)

In any event, even if each of the co-tenant is only severally and not jointly liable for the rent, if it's a single contract then what I wrote about no futher rent liability once tenancy ended or they continued to be tenant in a statutory periodic tenancy would still be true.

I agree with your earlier post, Get possession and start again completely.

Thank you everyone for your feedback.

The tenants ARE jointly and severally liable. sorry if I did not make this clear before. so as I understand they can all be sued for any rent due.However for Feb the 3rd tenant ( the one that is refusing to move ) has paid her share fully. The other 2 have paid pro rata till the date they plan to leave .
I have been advised that:
1) the time that should lapse until I can issue a SEction 8 notice is 2 months rent but because 1 tenant is paying her full share , then the time take to reach 2 months rent payment due for the WHOLE property  could be more. does that make sense and is it true?

2) If the 3rd tenant is effectively paying her rent share then can i actually use section 8 on her ? or is this when the joint and severally liablity clause kicks in?


i agree that fully informing any incoming tenants was never going to work but maybe now the 3rd tenant will realise that covering the full rent of the property by herself is not going to be possible and therefore the best option would be to leave.


So... I agree the best option is to get the 3rd tenant that has been an obstruction all along to leave BUT HOW ??
I have suggested it to her she leaves  and she refuses to. Maybe I should tell her that I am not planning to renew the tenancy when it ends so she will have to leave then anyway and save herself all the hassle now.

I could wait the required time lapse to pass and then issue both section 8 and 21 at the same time. The tenancy is due to finish end of july and apparently i can issue section 21 a max of 6 months before so effectively could do that now but may get more response if i do both at same time?


any advice how to get the tenant out??

Regarding the Deposit... while you may prioritise, it's February now and July is actually not that far away, if the Deposit is not under your control then I would be finding out as much about it as you can from your Agent... was it protected, where, who is the Lead Tenant (wouldn't it be interesting if it was the 1 of the 3?)... because any Deposit money to be returned is done in a single transaction by the Deposit Scheme and the entirety of the payment goes only to the Lead Tenant (who is then responsible for sharing it out). I would ensure the Agent knows, 100%, not to release this on the say-so of either outgoing Tenant... ensure your Agent is acting on your behalf, not confused in any way, shape or form.

What the 2 outgoing Tenants are doing here can be couched in various terms to enable a level of justification for their actions - personal safety being a great one to use - but it simply amounts to them wanting to leave, deciding to leave and unilaterally breaking the contract they signed. It's a sign of the times... people like to do what they want and kick-off when they don't get their own way, bugger the follow-on consequences (if they materialise).

Now... a question... but I thought that when one Tenant left in a Joint Tenancy it ended the Tenancy for all... so if the 2 do go, then the only way the 1 can stay (legally) is if a new agreement is signed (which it won't be)? This seems to possibly counter to what's said before - "if one tenant remains the Tenancy hasn't ended" - but only in a subtle way, because what you're looking for here is - I think - for the entire Tenancy to end and all Tenants to be gone. Advice on Shelter's site implies this and says that if 1 of the Joint Tenants leaves...

"If you want to leave a joint tenancy and the others want to stay it is usually best to discuss it with the other joint tenants before you take any action." which obviously won't work out well here... and...

"However if the joint tenancy has not been ended the landlord could still ask you to pay any arrears if the rent is not fully paid, even if you are no longer living there."

https://england.shelter.org.uk/housing_advice/private_renting/joint_tenancies

Quote from: Hippogriff on February 06, 2019, 10:09:10 AM

Now... a question... but I thought that when one Tenant left in a Joint Tenancy it ended the Tenancy for all... so if the 2 do go, then the only way the 1 can stay (legally) is if a new agreement is signed (which it won't be)?

That’s only if the Tenancy has gone SPT.  If in the fixed term then you need to all agree to surrender the lease.

But echo the advice on the agent/deposit... critical to do ASAP.

Quote from: DrHoney on February 06, 2019, 09:28:31 AM

any advice how to get the tenant out??

I would tell the remaining tenant that the other two have absconded and she now needs to pay the entire rent.  (This is what I was trying to tell you to do in the first place - perhaps a forum is not the best forum for communicating).

Send her the bill for the entire amount.  CCJ will follow etc etc but you are willing to waive all this for her to move on

Quote from: theangrylandlord on February 06, 2019, 11:00:38 AM

Quote from: Hippogriff on February 06, 2019, 10:09:10 AM

Now... a question... but I thought that when one Tenant left in a Joint Tenancy it ended the Tenancy for all... so if the 2 do go, then the only way the 1 can stay (legally) is if a new agreement is signed (which it won't be)?

That's only if the Tenancy has gone SPT.  If in the fixed term then you need to all agree to surrender the lease.

But echo the advice on the agent/deposit... critical to do ASAP.

Agree. This is what I read re legalities of a fixed term AST.
The Deposit situation is crucial. My experience was based on the advice given by the DPS whilst in a similar position where my 2 tenants who were a couple broke up, he left (before the end of the fixed AST and was Lead Tenant), she stayed on, paying their rent in full, deposit was reprotected and she signed a new tenancy alone. However the previous fixed AST had ended.

As the situation seems complex, I would say you need specialist legal advice, I would not rely on your agent in any way. Try asking your local solicitors if they have a Planning team who deal with landlords/tenant disputes and other property litigation.

I have emailed  the agents re the deposit and the third tenant . They replied saying they will go to see the agents today to clarify things , I have told the tenant she will be liable for the rent and given her the option to leave ASAP  as rent remaining unpaid will necessitate legal action etc etc . and I wont be renewing when contract ends anyway so she would be better leaving earlier rather than later without all the hassle that will ensue if she does remain.
I am also looking at legal advice /action although im hoping she will just come to her senses and leave!

maybe I should do one of these landlord courses, NLA anyone?

Quote from: DrHoney on February 06, 2019, 11:29:26 AMI have emailed  the agents re the deposit and the third tenant . They replied saying they will go to see the agents today to clarify things...

I'm not 100% sure what this means... but you need to be just asking your Agent what the Deposit situation is... 1) is it protected? (I bloody hope so), 2) who is it protected with? and 3) who is noted as Lead Tenant? ...and then 4) give them explicit instructions to not release the Deposit without your say-so... no matter what happens.

With them being Agents it is quite likely they have protected the Deposit in an Insured Scheme which means the money is really in their own bank account. You need to be very sure that they cannot release those funds to either of the Tenants who is outgoing willingly.

With them being Agents it is also quite likely they never protected the Deposit on your behalf.

Quote from: DrHoney on February 06, 2019, 09:28:31 AM
I have been advised that:
1) the time that should lapse until I can issue a SEction 8 notice is 2 months rent but because 1 tenant is paying her full share , then the time take to reach 2 months rent payment due for the WHOLE property  could be more. does that make sense and is it true?

2) If the 3rd tenant is effectively paying her rent share then can i actually use section 8 on her ? or is this when the joint and severally liablity clause kicks in?

Legally, you have the tenant, comprising of in this case three human beings. Any notices must be named and served to all 3 together.

There are 3 section 8 arrears ground:
Ground 8: At least two months' rent is unpaid,
Ground 10: Any amount of rent is unpaid,
Ground 11: Persistent delay in paying rent whether any rent is currently outstanding.
Ground 8 is what's called a mandatory ground, whereby if it's satisfied the court must award possession. Ground 10 and 11 is discretionary, even if the grounds are satisfied the court consider it reasonable to do so.

You can serve a section 8 ground 10 notice now, if anything to focus the mind of the one who's intending to remain.

QuoteMaybe I should tell her that I am not planning to renew the tenancy when it ends so she will have to leave then anyway and save herself all the hassle now.

She don't have to leave at the end of the fixed term. You can only legally evict someone with an order of the court, and having it executed by a County Court bailiff or High Court Enforcement Officer. If she remains in occupation past the end of the fixed term, then a periodic tenancy arise by operation of law. This statutory periodic tenancy is deemed granted by you to the same tenant (so all three of them). This fact is actually something to wave at the other 2. If this happen, which neither they nor you can legally prevent, then they will continue to be liable for rent beyond the fixed term until end of the SPT. The other two cannot end the SPT by notice until the day after it has been deemed granted and notice has to be at least one month and end on specific dates, so in practice mean they will be liable for at least two months rent. Remind all of them that they are jointly liable for the whole rent, and not just what they think of their portion, and it would be up to you who to chase for it.

The agents replied to say the deposit is in name of all three tenants and is INSURED However the certificate which they have sent me says it's protected . So I don't think he knows what he's talking about .
What is the difference between insured v protected deposit ?
Sorry if I  appear naive . I have never had any prob tenants before so not had to deal w these issues .

Seems the best option is to issue a ground 8 as soon as 2 months is unpaid .
What's the point of having a contract if it just rolls into a SPT at the end of it !!

Quote from: DrHoney on February 06, 2019, 01:19:06 PMThe agents replied to say the deposit is in name of all three tenants and is INSURED However the certificate which they have sent me says it's protected . So I don't think he knows what he's talking about .
What is the difference between insured v protected deposit ?

The difference is Insured and Custodial. Insured is where the money is physically held by the Landlord or Agent in return for paying a protection fee (this adds a level of control, kinda, and also allows the Agent - in your case - to earn interest on it). Custodial is where the money is physically sent to the Scheme, no interest is earned (by Agent or Landlord, but is by the Scheme).

Both are Protected (without the capital P I guess).

However, there must be a Lead Tenant. Yes, the Agent could have listed all three Tenants when it was protected (lower case p), but there's still a Lead Tenant. Whenever I get a Certificate it's the Tenant: bit... if you're looking at it then you must be able to see 1 name on there, right? That's your Lead Tenant. If it's (for example) myDeposits then it's got an IMPORTANT bit... saying - "This certificate should be signed by both the Landlord/Agent and Tenant/Lead Tenant to confirm that the information stated above is accurate to the best of both parties knowledge."

CORRECTION: Adding this to ensure the above is not misleading, it seems that the DPS and myDeposits both have the concept of a Lead Tenant and ask about it during the protection process, it is not 100% clear (from me) how the TDS works in this regard, so my assertion that there must be a Lead Tenant may be incorrect (some of their documentation certainly refers to Lead Tenant).

Quote from: DrHoney on February 06, 2019, 01:19:06 PM
The agents replied to say the deposit is in name of all three tenants and is INSURED However the certificate which they have sent me says it's protected . So I don't think he knows what he's talking about .
What is the difference between insured v protected deposit ?

You're confusing terms.

A deposit must be protected in accordance with one of the authorised scheme within 30 days of the landlord (directly or through their agents) receiving it. The landlord (or their agent) must also give to the tenant and any relevant persons the prescribed information with the same deadline.

In England & Wales, there are 3 companies that are authorised by the Ministry of Housing, Communities and Local Government to operate deposit protection scheme. All of them offer two versions, custodial and insurance. Custodial is where you give them the money, and after the tenancy they will pay the money out in accordance with landlord & tenant agreement, its arbitration decision, or per court order as the case may be. Insurance is where you or your agent hold onto the deposit with the promise that will hand it over to the scheme if they request it as a result of a tenant dispute. You pay a fee to use like an insurance fee, the scheme will pay out to the tenant if you do a runner with the deposit and then the scheme will come after you for the money.

Quote from: DrHoney on February 06, 2019, 01:19:06 PM
What's the point of having a contract if it just rolls into a SPT at the end of it !!

It's call security of tenure, to protect tenants so they don't become homeless without a court's involvement. You're still entitled to rent etc. as before.

Quote from: DrHoney on February 06, 2019, 01:19:06 PMWhat's the point of having a contract if it just rolls into a SPT at the end of it !!

That is the point, that's what most people like (I certainly do).

Thanks for the explanation which I will re read in detail later !
No there are three names where it says tenant . Honestly .
My name where it says landlord .
It's the Tenancy Deposit Scheme and the certificate is titled ' tenancy deposit protection certificate . "
No one has signed it apart from a standard signature from the CEO for and on behalf of the dispute service .

Sadly, I have no experience of the TDS. I have for both the DPS and myDeposits, so could guide you through them. I would re-ask the Agent who was nominated as Lead Tenant. The answer would be surprising if it was "all three"... take a look here (it's quite interesting, "Tenancies involving more than one tenant")...

https://www.tenancydepositscheme.com/resources/files/HowTDSdealswithtenanciesinvolvingmorethanonelandlordortenant.pdf

Seems this scheme is different to what I'm used to.

OK I had a quick look at the link and it does say where there is more than one tenant then the first named is the lead tenant which happens to be the one that wants to stay on and the one causing issues and that they would be asked if they can confirm that they would act on behalf of all the tenants, don't think this was done.

it all sounds very complicated.

Quote from: DrHoney on February 06, 2019, 02:18:32 PM
OK I had a quick look at the link and it does say where there is more than one tenant then the first named is the lead tenant which happens to be the one that wants to stay on and the one causing issues and that they would be asked if they can confirm that they would act on behalf of all the tenants, don't think this was done.

You're lucky it isn't MyDeposits. The requirement to obtain permission of all the joint tenant for the nomination of a lead tenant is part of MyDeposits insurance scheme's initial requirements. Failure to obtain such permission when with MyDeposits would have rendered you liable for a deposit protection penalty.

Would this not be the responsibility of the agents ? I'm beginning to think I'm paying for not a lot !

Quote from: DrHoney on February 06, 2019, 03:20:54 PM
Would this not be the responsibility of the agents ? I'm beginning to think I'm paying for not a lot !

Ultimately, you're response for what your agent do in your name. So while yes, a tenant could sue the agent for a deposit protection penalty, they can just sue the landlord as well. It'll then be up to the landlord to try and join the agent as a defendant or for the landlord to sue the agent seperately for losses from having to pay the penalty. And don't forget if you're not in compliance, no valid section 21 notice.

Quote from: DrHoney on January 22, 2019, 10:37:57 AM
The tenancy contract works on a rolling basis in that when a tenant wants to leave they are required to find someone to take over their rent and lease till the end of that lease . The young lady in question was therefore " chosen " by a previous outgoing tenant .

Interesting, when I read that the first time I wondered how the deposit would have been managed....

The incoming tenant pays the outgoing tenant the deposit amount and the names are then changed on the tenancy deposit . It seems that the names then move up in order so that the one that has been resident the longest before the first named and thus the " lead tenant ".

I've fully informed all the tenants of possible implications if they continue to not pay . They're ( 2 out of 3)moving out next week so now have to wait till 2 months full payment arrears before start  section 8 proceedings .