When two property owners are joint landlords, how can they regain possession of the property when they separate? Litigation Executive at Coodes Solicitors, Hayley Gaffney says it can be a complex situation.
It is very common for people to own properties jointly, as business partners, family members, friends, spouses or partners. Many choose to rent out their properties, with the owners being joint landlords and both benefitting from the rental income.
When a relationship breaks down, one of the landlords may wish to live in the tenanted property or sell it and, to do so, would need to serve notice on the existing tenants. Here at Coodes, we advise a number of people in this situation. The common question from these clients is whether they can serve notice alone and obtain possession or if they need to get agreement from the co-owner to do so.
To regain possession of a property with an assured shorthold tenancy, a landlord must serve a section 21 or section 8 notice, or both. A section 8 notice may be used if your tenants have broken the terms of the tenancy, while section 21 notices are used when you simply want to regain possession of the property.
The answer to the question of whether or not one landlord in a joint tenancy can serve notice in order to reside there depends on the tenancy agreement and whether or not an appropriately worded notice has previously been served regarding possession for occupation. If the tenancy agreement allows it and the appropriate notice was served, possession could be sought by service of a section 8 Notice under the Housing Act 1988 on the basis of Ground 1. This allows for possession as a mandatory ground if one or both of the owners of the property (or their family) wish to move in and live there. This section 8 notice can be served by either or both joint landlords under this ground.
To serve a section 8 notice to gain possession and sell the property, the landlord(s) would need to prove that other grounds under section 8 had been met to enable them to remove the tenants for that purpose.
So, what if it is not possible to serve a Section 8 notice as no prior notice was served before commencement of the tenancy allowing you to do so or none of the other grounds for serving a section 8 notice have been met? The next step would be to see if both landlords are required to agree to service of a section 21 notice.
In this instance, it would of course be necessary to ensure the necessary prescribed requirements had been met allowing for service of a valid section 21 Notice.
This question is especially prevalent in circumstances where, for instance, husband and wife are in the midst of a contentious separation and cannot reach agreement in relation to the property.
The Housing Act expressly states that section 21 notices do not require the name of every joint landlord to be stated. In other words, it is not strictly necessary under the Act for a notice to include both landlords’ signatures. However, it is good practice for each of the joint landlords to consent to the giving of the Section 21 notice. Having agreement from both landlords will help to avoid any argument later if and when it is necessary to issue possession proceedings following expiry of the section 21 notice.
An assured shorthold tenant cannot usually challenge a section 21 notice which contains reference to only one of the landlords. However, if the tenant can prove that the other landlord did not know of or consent to the service of the notice, that may be a good and valid defence to a possession claim. This may later follow if the tenants fail to vacate when the notice expires.
In conclusion, the answer is not a simple one. Both owners are not necessarily required to be named on the notice for it to be validly served and, in most instances, a notice served by only one joint landlord is sufficient to end a periodic tenancy. However, to avoid potential challenges from a tenant, it is best to obtain consent from the other landlord prior to serving notice.
If obtaining consent and/or reaching agreement is simply not possible, it may be necessary to obtain a Court Order allowing for possession to be sought by only one of the joint owners.