Getting Out of An Assured Tenancy When The Property Is Unsuitable And The Tenant Is Rehoused As a Homeless Person

The Question / Problem

This is a common problem for people who have to leave accommodation and apply as homeless due to domestic abuse or some other reason which means that their home is no longer reasonable for them to continue to occupy. They may be provided with alternative accommodation by the local authority under Part 7 of the Housing Act 1996 but until they can terminate their previous tenancy they have two lots of rent to pay. This will be a problem because the DWP and/or Housing Benefit will only pay the rent for one tenancy. 

Most assured shorthold tenancies in the private sector are for fixed periods or usually a year or more with no break clause allowing for earlier termination. This means that the tenant who has to leave faces being stuck with two tenancies until the fixed term of their first tenancy expires. If the tenant asks the council who is rehousing them for help in getting out the first tenancy or paying the rent for it they will usually not get it on the basis that the council see their role as limited to providing safe accommodation but not sorting out the termination of the first tenancy.

There may be a further problem where the applicant has a partner who may have been the perpetrator of the domestic abuse who is still living at the first property and does not want to leave. The partner may be a joint tenant with the applicant.

The Answer /Solution

Unfortunately the local authority are entitled to say that helping the applicant sort out their previous tenancy and avoid rent arrears is not their responsibility. Their duties are concerned with securing that suitable new accomodation is provided.

There are are two primary ways for a tenancy to be terminated by the tenant before the end of the fixed term. These are (1) a surrender of the tenancy and (2) An occupier's notice to quit.

A surrender of a tenancy is the best solution to this problem and should be available where the landlord for the first property is sympathetic. They way it works is that the tenant invites the landlord to accept a surrender of the tenancy. This should be set out in writing and if accepted will have the effect of terminating the tenancy with immediate effect.

If the landlord is not sympathetic and refuses to accept a surrender of the tenancy then the tenant will need to serve an occupier's notice to quit as soon as possible. My view (please leave a comment correcting me if you disagree) is that the once the fixed term has ended the notice can be served and will take effect after a month or so depending on the tenancy. If the fixed term has not ended the tenant should serve a notice to take effect as soon as the fixed term ends.

As regards the partner / joint tenant left behind at the property the law provides that termination of a joint tenancy by one of the joint tenants with or without the agreement of the other tenant ends the tenancy. This is because the joint tenancy is treated as one combined tenancy which can be ended by either tenant as was confirmed by the Court of Appeal in the case or Hammersmith LBC v Monk [1992]

In practice a landlord faced with a tenant having to move out in an emergency such as this would be well advised to accept a surrender of the tenancy. This is because they would be better of reletting the property as soon as possible. Until they do they face not receiving any rent. They may be able to take legal action to recover the rent but in they may have difficulty find out where the former tenant has moved to and may face difficulty in enforcing a judgment for rent arrears against a former tenant on low income. Most landlords will end up deciding to write off the rent arrears. Accepting a tenant's surrender of the tenancy also has the advantage of allowing them to re-let the property without the risk of the former tenant reappearing and making a claim for unlawful eviction.

Conclusion

A tenant under a fixed term tenancy which has not expired has no legal right to have the tenancy terminated before the end of the fixed term. If the landlord refuses to accept the surrender they remain liable to pay the rent up to the end of the fixed term. They won't have to pay it if the landlord does manage to re-let the property but will be liable to pay if the property can't be re-let.  In practice I have found that it is very rare for landlords to pursue tenants who move out early for rent arrears.

1 thought on “Getting Out of An Assured Tenancy When The Property Is Unsuitable And The Tenant Is Rehoused As a Homeless Person

  1. Mark Prichard

    What about the common law principle that enables a tenant under a fixed term tenancy to give up possession on the last day of the fixed term? Isn’t it the case that there is nothing in the Housing Act 1988 which prevents the operation of this rule (although whether a contractual provision may operate to prevent its operation would need to be considered, and if so perhaps whether it is an unfair term). Clearly, care needs to be taken to effect this successfully, e.g. by giving up possession on the final day, and not holding over until a statutory periodic tenancy has commenced. Ideally also care needs to be taken to record the vacation and inform the landlord of the effect. But my understanding was that this common law rule may operate, with the effect that no notice beyond the end of the fixed term is required?

    In the context of homelessness and the help available from local housing authorities, perhaps it’s also worth mentioning that if the council accept the ‘relief’ duty (e.g. because the tenant is at risk of domestic abuse or violence, and so in the context of statutory homelessness it is not reasonable to continue to occupy), then a final offer cannot be made if the homeless applicant is subject to obligations in relation to their existing accommodation, and cannot bring those obligations to an end (under section 193A(7)). In essence, if the applicant continues to reside in the accommodation from which they are homeless, and cannot end the tenancy before they are required to take up a final offer during relief, the final offer cannot be made. I mention this because it something that council homelessness officers are often unaware, not having actually read the statutory conditions set out in section 193A.

    In these circumstances, advice and assistance from a council on ending a fixed term may well be something that it’s in their interests to help with. For example, if the council wish to bring their duties towards a fixed term tenant to an end via a final offer it may well be worth them negotiating with the landlord, and/or offering the landlord a discretionary payment to ‘oil the wheels’ and convince the landlord to accept a surrender.

    Reply

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