Question

Ending a Tenancy (England) | England | Tenant Wants to Leave (England)

Joint tenants. One tenant gives notice the other tenant refusing to leave.

9 May 2021 | 10 comments

Am I right in thinking that if one tenant leaves after giving more than 4 weeks written notice and at the end of a rental month that the remaining tenant refusing to leave becomes a trespasser?  As a trespasser, damages are awarded equivalent to double the rent.  Also as the remaining tenant is a trespasser I can contact the police on the day to see if the police will remove him from the property.  In addition, in the property is another person who is not a permitted occupier.  I have copied and pasted notes that I found online which I believe is relevant.

 

Section 18 Distress for Rent Act 1737

Section 18, entitles the landlord to double the passing rent where the tenant has given a notice that he will quit the premises at a specified time but subsequently continues to occupy the premises in contravention of the notice. 

The failure of the tenant to vacate on the expiry of its notice to quit triggers the landlord’s entitlement to double rent under the 1737 Act. The double rent becomes chargeable for the period of “holding over” by the tenant; i.e. from the expiry of the notice until the day the tenant actually vacates.

For section 18 to apply, the landlord must treat the former tenant as a trespasser in unlawful occupation and must not do or say anything which would treat the lease as continuing. 

It is therefore essential that the landlord does not accept rent at the old level once the notice to quit has expired otherwise he will be held to have waived his right to claim double rent.

The object of the 1737 Act is to compensate the landlord for potential loss of rent when the tenant held over against the landlord’s insistence that the tenant should comply with his notice to quit. Therefore, similarly to the 1730 Act, the right to double rent arises only when the tenant holds over after he has served a notice to quit and, therefore, is in fact a trespasser and the landlord treats him as such.

Since 2012 under s144 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 landlords can now notify the police that their property is occupied by trespassers as this is now a criminal offence so do not necessarily need to use the civil court system. However, much will depend on the willingness of the police to intervene and, where the police are not willing to make arrests, landlords will need to follow the civil law rules which are still in force.

Answer

10 Comments

  1. guildy

    It’s correct that if one tenant gives a valid notice to quit, that has the effect of ending the tenancy for them all. It’s also correct that a landlord is entitled to double rent after expiry of a valid notice to quit if the tenant fails to leave.

    However, the rest of the article is not accurate.

    You must “treat” them as a trespasser but they’re not a trespasser from a possession sense because they lawfully entered the premises as a tenant. Therefore a normal possession order is required through the courts and the trespasser procedure cannot (and must not) be used. Nor can the police help. The grounds for possession are the notice to quit given by the other tenant.

    Please see our article about double rent.

  2. markdunn

    Thank you for the quick response.

    1) Can the LT901 Mesne Profits letter be submitted before the end of the tenancy to make them aware of what will happen and do I need to submit it again the day after the end of the tenancy?

    2) Can a statement be added to the LT901 Mesne Profits letter that they will need to pay double the rent as damages? Or is there a separate statement that can be provided which makes them aware double rent is required?

    3) Can the non permitted occupier be removed any quicker than going through the courts?

  3. guildy

    There’s no need to submit the letter before the end of the notice to quit but you could do an email pointing out that you may claim the equivalent of double rent. Then send the letter later.

    The letter is just a template and can be amended as you wish.

    In reality, it will be difficult to deal with the other occupier in any other way. You have to go through the possession route anyway so there’s no ultimate gain in getting back the property.

    We should also add that such a possession claim based upon a tenants notice to quit is extremely complex and more importantly, little used and little known to the courts. For that reason, we would urge a solicitor is used for that action due to its complexities. Furthermore, although we have guidance, it hasn’t been updated for any temporary Coronavirus rules (because it’s rarely used) so any temporary rules for possession will need to be included. As an example, the Coronavirus notice will need to be included with any paperwork and sent to the tenants before the hearing. See this article for general possession information under temporary rules.

  4. markdunn

    Thank you again for the super quick response.

    The tenant that gave the notice to leave is very keen to have this issue resolved one way or another. He doesn’t want the possibility of being held responsible for double rent and being involved in a court case. He has suggested he will change the locks on the final day and hand me the keys. The likelihood is possessions for the remaining tenant will be in the property. The tenant who wanted to stay will have to remove his possessions or risk losing them. Can this be deemed as the end of the tenancy and I have legal right to rent the property to another tenant?

  5. guildy

    Please accept our apologies for the delay in replying.

    It’s a criminal offence for “any person” to unlawfully evict and without a court order (not just a landlord).

    The tenant who wants to stay would be entitled to enter by force (e.g. change locks again).

    Because you’ve been made aware one wants to stay you’re going to ideally need some sort of confirmation they’ve gone and “have no intention to return” which is the key term.

    For goods left at a property, please see this article

  6. markdunn

    There is an unauthorized occupant in the property. A male adult. I don’t know who he is. What powers do I have to have him removed and what penalties does he face please?

  7. guildy

    Whilst you’re acting against the tenants to get possession, any order will be for the whole property so the bailiff (if needed) will evict all persons.

    However, if both tenants confirm they’ve gone and not intending to return but the person remains, you should be able to use the trespasser procedure here: https://www.landlordsguild.com/trespasser-possession-procedure/

  8. markdunn

    The tenant leaving the property claims I will have no legal claim over him because he has handed back his key and left the property. Is this correct?

    If I allow the remaining tenant and the non permitted occupier to stay for 3 months, which is what they have requested, have I granted them tenancy or do I need to serve notice on the day the property is supposed to become vacant?

    Like most landlords, I just want a peaceful life so I am not looking to go to court. If they just pay the rent for 3 months and then leave the property in a clean condition as agreed I will be ok with that. I do not want to give them a new tenancy agreement as neither of the remaining tenants has permanent jobs and they are very argumentative so does not bode well to have them as tenants.

  9. markdunn

    Below is a message that has been Whatsapped to me from the tenant vacating the property. Please confirm what statements are correct and give any advice.

    Regarding his request for the landlord’s address, I am the managing agent and on the tenancy agreement, I stated the landlord’s name and gave my business address. I take it that is correct and I do not have to provide the landlord’s home address?

    Should I ask him to ask his ‘High Authorities’ to contact me direct?

    Whatsapp message from vacating tenant:

    Hello Mark
    I would like everything written
    Your references and everything
    I escalated my matter to hight authorities
    They want your statement ,article references etc

    According to them I can leave the property and that’s going to be thr end of the tenancy agreement between under my name

    Also i would like the full name and address of my landlord

    By the law section 1 I can request it

    furthermore

    On or after the fixed term at least one calendar month’s written notice must be given by the tenant to the landlord which must expire at the end of a period of the tenancy (the day before the rent is due).

    Accordingly if you have given one months correct notice or your joint tenant has, that notice operates to terminate the tenancy on behalf of both of you under the laws of journey tenancy and your landlord or agent is incorrect.part

    If your co-tenant wishes to remain then the landlord will have to enter into a completely new tenancy agreement with your co-tenant in relation to which you will not have to play as the tenancy that you were in has been brought to an end.

  10. guildy

    When one tenant gives notice, it ends the tenancy for all but, you’re entitled to vacant possession. Until then, you’re entitled to damages for use and occupation.

    If you accept the remaining occupier(s) as staying (which is a good idea for an easy life like you suggest if they are okay), you will create a new tenancy between you and them. At that point the outgoing tenant ceases to be liable for anything further. It is imperative that you get a new tenancy agreement signed because you don’t want a verbal tenancy as it will make it harder for possession later. If you accept them as staying and don’t do anything, they will be an assured shorthold tenant regardless but with no written agreement.

    It is your decision in relation to the ones who want to stay. Either treat them like a trespasser and start court proceedings for possession in which case they are all liable for damages for use and occupation or, allow them to remain and grant a tenancy.

    You can grant an assured shorthold tenancy for 3 months if you like but if they don’t leave, you will have to serve them notice and obtain possession order in the usual way. There’s no benefit to a landlord in giving less than 6 months fixed term because you can’t give a notice until after 4 months from the start of the tenancy. There are also council tax problems with giving less than a 6 month tenancy. All of that being said, if you think they will go at month 3, you can give a 3 month tenancy if you wish – we just don’t recommend it.

    In respect of section 1 name and address, you should provide it again and it can be your “place of abode or place of business or, in the case of a company, its registered office”. See section 38 Landlord and Tenant Act 1985. From the request, you must provide your name and address within 21 days.

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