Thu 13 Jul 2017
Unfortunately, this question is not uncommon. From time to time we are approached by tenants asking if one of them can be removed from their tenancy agreement. Tenants’ circumstances can and do change during the length of a tenancy; friends can fall out and couples can split up. The question is, legally, can a tenant just move out and be relinquished from their responsibilities?
The short answer is no, if the tenancy is joint and several (which most are). Joint and several liability means that each tenant is fully and equally liable for the full rental amount. If required, a landlord could seek to recover all of the rent from any of the tenants. In other words, each tenant is jointly and individually liable for the rent, regardless of whether or not they are actually living at the property.
We would generally advise our landlord to respond to this request in one of the following ways:
You could refuse the tenants’ request to be removed from the tenancy and to end their responsibilities in terms of rent payment until the end of the existing fixed term period. All tenants would remain on the tenancy agreement and you could pursue them individually for the full rental amount if required. However, whilst this continues the tenants’ liability to pay rent it doesn’t mean you can force a tenant to remain living at the property.
You could agree to the tenant being removed from the tenancy agreement as long as this request was received in writing from each party. You could then start a new, fixed term agreement with the remaining tenant(s).
There are however potential dangers with agreeing to this option that you would need to consider. Before agreeing to a tenant being removed from an agreement, we would advise checking that the remaining tenant is capable of paying the rent on their own. What were the results of their initial referencing? Have their circumstances changed? You could agree that the tenant remains in the property on the basis that they provide an appropriate guarantor or rental payment in advance (if necessary).
It is also worth bearing in mind that when a tenant’s deposit is initially registered with a government scheme (as legally required) one tenant is allocated the title of ‘Head Tenant.’ The deposit registration company will then only deal with this tenant. Issues can arise if it is the ‘Head Tenant’ that is wanting to leave the property. In these circumstances, you should ensure an agreement regarding the deposit is made with all parties involved and this is confirmed in writing. Usually, if the Head Tenant is the one to leave the property then you need to arrange for the remaining tenant to pay a new deposit which could then be registered in their name.
If an agreement cannot be reached and it is not suitable for one tenant to be removed from the tenancy agreement and the other to remain in the property then Option 1 may be your best course of action followed by the service of a Section 21 Notice to end the tenancy (at the end of fixed term period) thus allowing you to re-market to find new tenants.
As you can see, whilst there are options for both landlords and tenants in these circumstances, the results are not always straight forward.
If you have any questions relating to the above or would like advice on the matter then please contact Rebecca or Hannah on 01530 271313.
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