Home » What happens when joint tenants break up or fall out?

What happens when joint tenants break up or fall out?

house cut in two with couple torn apart showing the relationship break down of joint tenancy

What happens when a relationship between tenants breaks down and the couple splits up, sharers fall out, or tenants simply want to go their separate ways?

Relationship break down is very common, with around one third of marriages in England ending in divorce. This amounts to over 100,000 divorces each year in England. On top of that are the 22% of all couples in England who cohabit (ONS), and probably at least a similar proportion of them break up. Add to this sharers who, without being in a couple, may want to go their separate ways for even the best of reasons, like relocating for a new job.

This means that most landlords will come across couples or sharers who wish to end or change their tenancy.

However, if they’re joint tenants, it’s not always simple, especially if one wants to remain. There are lots of different scenarios which need handling differently.

This blog post explains what joint and several liability means for tenants, and the options available to unpick a joint tenancy when a relationship ends in separation or divorce, or sharers want to go separate ways.

In writing this blog post, I wear my hats as both a lawyer and as a landlord who’s had to manage the break up of tenants.

First step: Check if the couple or sharers have a joint tenancy

couple looking sad facing away from each other

The first step is to check whether the couple or the sharers are joint tenants, as this makes a big difference to the options available.

What are joint tenants?

When two or more tenants are listed as tenants in a tenancy agreement, they are joint tenants. This may be a couple or two friends who live in a property together as sharers. They both sign the tenancy agreement and have the same rights and responsibilities for paying the rent and looking after the property.

Joint tenants are responsible for paying the rent, and have the right not to be evicted without the landlord going through a legal process, for instance serving a valid Section 21 Notice.

What does joint and several liability mean for joint tenants?

Tenancy agreements will usually include a clause that spells out that the tenants have “joint and several liability”. This means that the couple or two sharers are both individually responsible (ie 100%) and jointly responsible (50:50) for the rent.

Here is an example of a clause in a tenancy agreement which contains a clause explaining what joint and several liability means (OpenRent):

Where two or more persons are named on the tenancy agreement, their obligations shall be joint and several. This means, for example, that any one or more of the individuals jointly forming the Tenant can at the Landlord’s sole discretion be held responsible for the full Rent and other obligations under the agreement if the other individuals do not fulfil their obligations.
Extract from OpenRent tenancy agreement

Consequently, the landlord has the option of asking one or all of the joint tenants to pay the rent, and can also claim damages against any or all of the joint tenants. Another consequence is that if one joint tenant issues a notice to quit to terminate the tenancy, it will terminate the tenancy for all of the tenants.

Different scenarios in relationship breakdown of a couple with a joint tenancy

two women arguing

When a couple breaks up, it can be very emotional, and one or other, or both of the tenants may want to move out. Alternatively, one might want the other to move out. I’ll go through each of the scenarios and explain the options available.

Scenario 1: Both joint tenants want to leave the rental property

1. When both tenants want to leave during a periodic tenancy

If both tenants want to leave and they’re in a periodic tenancy, it’s straightforward. One or other of them can serve notice to quit with at least one month’s notice, to end on a rent payment day.

It’s no different from when any other tenant serves notice to quit, and the tenancy ends.

2. What if both tenants want to leave during a fixed term?

If both tenants want to leave mid-way through a fixed term, it’s trickier.

Landlords’ rights when tenants want to leave during a fixed term

Landlords have the right to insist that tenants keep paying the rent until the end of the fixed term. They can also refuse to return the deposit until the fixed term expires.

The landlord has the option of allowing them to leave, but claiming from the tenants the loss the landlord has suffered for what is a breach of contract. For instance, a landlord can claim lost rental income and/or any reasonable costs associated with re-letting.

However, the landlord cannot “double-dip”, and claim lost rental income at the same time letting to a new tenant. There would be no loss, and it would also be a breach of the Schedule 1, Para 7 of the Tenant Fees Act 2019.

Landlord agrees to early surrender of the tenancy

Although the landlord can refuse to allow tenants to leave early, or to charge them for losses, this isn’t necessarily the best or the right course of action.

Rents for new tenancies are increasing across the UK in Q3 2023 by an average of 10%, according to Rightmove. Consequently, the landlord is highly likely to be able to put up the rent if the tenants move out early. Properties let so quickly with high tenant demand, particularly if the departing tenants allow the landlord to show applicants around before the tenancy ends, that the void period will probably be short. The landlord might very well end up better off if they move out.

With this in mind, I believe that responsible landlords should release tenants from their fixed term after, say, a month’s notice, without insisting they stay pay the rent until the end of the fixed term. Landlords can always charge tenants reasonable marketing costs if they’re out of pocket, despite receiving a higher rent.

The easiest way for landlords to release tenants during a fixed term is for all parties to sign a deed of surrender, which should be witnessed. This releases everyone from the tenancy agreement.

Can tenants sublet?

Another option is for the tenants to sublet the property for the remainder of the fixed term.

Most tenancy agreements require landlords to give their prior written approval for tenants to sublet, and they may well refuse. Subletting without the landlord’s consent would be in breach of the tenancy agreement, and of course any damage done by someone who sublets the property would come out of the deposit. Tenants should not sublet unless the landlord agrees.

If the landlord does decide to allow the tenants to sublet, they should ideally meet the sub-tenants, and be sure to take references and do the right to rent checks. It’s likely to be easier and less risky for the landlord to release the tenants early and enter into a new tenancy instead of subletting.

>> Related Post: How to handle subletting

Scenario 2: One joint tenant wants to stay, but the other wants to leave

sad tenant packing up

This scenario can be tricky for the tenant who wants to stay. There are two ways of doing this for joint tenants.

1. Release the departing tenant from the tenancy agreement

One method is for the landlord to agree to release the departing tenant from the tenancy. The parities can do this by signing a departing sharer form. This removes the departing sharer from the tenancy agreement, and converts it into a sole tenancy in the name of the remaining tenant. It also sets out whether the deposit will stay with the tenancy or half paid to the departing tenant.

Releasing the departing tenant requires the consent of the landlord who would need to be satisfied that the remaining tenant can afford the rent by themselves. The remaining tenant would need to make up the rest of the deposit if part is repaid to the departing tenant.

2. One of the tenants serves notice to quit, the remaining tenant enters new tenancy agreement

This is a variation on number one, but where one (or both) of the tenants serves notice to quit for the original AST, and the landlord enters a new agreement with the remaining tenant. The landlord would need to return the deposit for the original tenancy agreement, and ask for a new deposit for the new tenancy agreement.

If it’s during a fixed term, the tenant would not be able to serve a valid notice to quit. However, with the landlord’s agreement, the parties could sign a deed of surrender. If the landlord does not agree to release the departing tenant, then that tenant will remain jointly and severally liable for the rent until they are able to serve notice to quit at the end of the fixed term.

After serving a notice to quit, both tenants lose their right to live in the property on expiry of the notice. This means remaining tenant would not have a right to a new tenancy. Therefore they should discuss their situation upfront with the landlord, to make sure the landlord is happy to grant a new tenancy to the remaining tenant. The landlord might ask for a guarantee if they have concerns about affordability with just one tenant.

As it would be a new tenancy, the landlord should through the whole process as if they’re a new tenant. See below for a checklist of what landlords should do for the new tenancies.

Scenario 3: One joint tenant wants to stay, but wants the ex to leave

Sometimes in a relationship breakdown, one party will want the other to leave, particularly if there has been domestic violence. This can be very difficult both practically, and legally, without a court order.

If the tenancy is periodic, the tenant who wants to stay can serve notice to quit, and enter into a new agreement with the landlord. This is effectively the same as Scenario 2.2 above.

Where the tenancy is in a fixed term, it’s very difficult to “oust” the ex against their will, without a court order. The best course of action is to reach an agreement, or wait until the fixed term ends.

Scenario 4: One out, one in (change of partner or sharer)

When one sharer moves out, the remaining tenant may find it difficult to pay the rent. Therefore, they may look for someone else to replace the person who has left out. Similarly, when couples break up, the tenant who wants to remain may wish for a new partner to move in.

The simplest way to do this is for the tenants to terminate the existing agreement with a notice to quick, and for the remaining tenant and the new tenant to enter a new agreement.

As per Scenario 2.2 above, the landlord needs to go through the whole process as if they are both new tenants. See below for a checklist of what the landlord needs to do for a new tenancy or a new tenant.

The landlord also needs to do a checkout of the old tenant of the tenancy- see below for the checkout checklist.

What are the options when a sharer wants to leave a joint tenancy?

tenant handing back keys to another tenant in a break up

There may be many reasons why a sharer might want to leave rental property. Everything from moving in with a new partner, to relocating for a job, or because they want their own place.

Although HMOs usually have separate tenancies for each room, student tenancies tend to be joint and two friends sharing a flat would tend to be on a joint tenancy.

There are two approaches: new tenancy and tenant switch.

Tenant change with a new tenancy

It’s important to be fair to both the departing tenant, and those who remain. The Tenancy Deposit Scheme recommend that the best approach is to bring the existing tenancy to an end, check out the named tenants and distribute the deposit (less deductions) and start again with a new tenancy, which includes the new tenant.

Before the departing tenant receives their share of the deposit, they should sign a waiver which confirms they have received a refund of their share of the deposit under the original tenancy. The waiver should also state they have no claim to the deposit under the new tenancy agreement.

See below for a checklist of what the landlord needs to do for a new tenancy. Click here for guidance for how to do the checkout for the departing tenant.

Do check with the approach of your deposit scheme, as the rules and approach differ from scheme to scheme.

Tenant switch: Can the new tenant pay the old tenant their share of the deposit?

A tenant switch, where the new tenant effectively “buys out” the deposit of the old tenant sounds like a neat solution. However, it can be the worse of all worlds for the new tenant, the tenants who stay and the landlord. This is why the Tenancy Deposit Scheme recommend terminating the existing tenancy and entering into a new tenancy.

For instance, there may have been some damage to the property by the time the tenant moves out, and that should be assessed and dealt with before the new tenant moves in. If the deposit is handed over, the outgoing tenant won’t be paying their share of the damage, and would be judged on the original check-in inventory. This will be unfair to the new tenant.

That said, it is possible for the outgoing tenant to assign their rights and responsibilities to the new tenant, if all parties agree (the existing tenants and the landlord). The new tenant would need to have their name on the tenancy agreement, which would mean an addendum would need to be signed. It does get complicated, and it’s far simpler for the landlord for the old agreement to end and enter a new one.

If the tenants do insist on a replacing the outgoing tenant with the new one, all of the schemes do allow “tenant transfer”. The deposit information can be updated with the details of the new tenant, and the departing tenant’s claim removed. The deposit scheme would normally need to see a deed of assignment or waiver, and the prescribed information would need to be reissued to the new tenants. Complications arise if deductions need to be made from the deposit (which is why it’s easier to have a new agreement).

The landlord should check with their deposit scheme how to go about it, as the process differs from scheme to scheme. Here are links to guidance on this issue from the deposit schemes: MyDeposits, Tenancy Deposit Scheme and Deposit Protection Service.

On a technical note, if one joint tenant serves notice to quit, it will terminate the tenancy for all.This can make it easier for the landlord to insist on a new tenancy, rather than a tenant switch. However, all of the documentation will need to be reissued (see below for the checklist).

What if a couple don’t have a joint tenancy?

Sometimes a couple won’t have a joint tenancy. This might be because one moved in at a later date, and the tenancy agreement was never amended to add them to the tenancy.

If one of the couple is not a joint tenant, they have no rights under the tenancy agreement. They will be a “permitted occupier” at best. On the flip side, if they’re not on the tenancy agreement as a joint tenant, they won’t be responsible for paying the rent.

What is a permitted occupier?

A permitted occupier is someone who is not a tenant, but who is someone that the landlord agrees may live at the property with another tenant or tenants. As they’re not a tenant, they have no legal rights under the tenancy agreement and are not liable to pay bills.

If the tenancy ends for any reason, a permitted occupier must leave. A landlord must do a right to rent check before agreeing for someone to be a permitted occupier.

How to allow a permitted occupier to stay after a relationship break up

Sometimes a permitted occupier (or someone who has been living there unofficially) might wish to stay in the property and take on the tenancy when their partner or housemate moves out.

The landlord is under no obligation to allow them to enter into a new tenancy agreement. Assuming the landlord is happy to allow them to stay, the landlord will need to follow to ensure the existing tenancy is terminated and the remaining person takes on a new agreement:

  • Periodic tenancy. If the tenancy is not during a fixed term period, the departing tenant would need to serve at least one month’s notice to quit, to end on a rent payment date.
  • Fixed term. It’s more complicated during a fixed term tenancy. The departing tenant would need to obtain the permission of the landlord to surrender the tenancy agreement early under a deed of surrender. If the landlord doesn’t agree to this, the outgoing tenant would remain on the tenancy agreement until the expiry of the notice to quit end of the fixed term.This means they’ll still be responsible for paying the rent until the end of the term.
  • New tenancy. Once the existing tenancy is terminated, the permitted occupier would need to enter into a tenancy agreement in their own name with the landlord. As with the new tenancy option for when one of the tenants wants to stay, and enter a new agreement, the landlord should through the whole process as if they’re a new tenant. (See Scenario 2.2 above).

Checklist reminder for when one joint tenant leaves

packing boxes and house plants moving out

Here is the checklist of steps that a landlord should take when one tenant moves out or the tenancy ends after a break up, falling out, or simply moving away:

  • If a tenancy ends, the landlord will need to repay the deposit, less any deductions for damage or arrears. Unless the property is in the same or similar condition to the start of the tenancy, the landlord should arrange for an inventory to assess whether it is fair to make any deductions.
  • In the event a tenant is released from the tenancy, without the tenancy coming to an end, the landlord will need to repay the departing tenant’s share of the deposit. However, it is possible for the tenant to agree that the deposit should stay with the tenancy. (See below for the wording).

New tenancy checklist reminder

Whenever a landlord has a new tenant or tenancy, they should do the following:

  • Set the new rent. A landlord can increase the rent for a new tenancy agreement. A responsible landlord will keep any rent increase reasonable, in line with their usual approach.
  • Do the right to rent checks and keep copies of the documents.
  • Carry out affordability checks, credit referencing, and consider whether they should ask for a guarantee.
  • Receive the new deposit, protect it in a deposit protection scheme, and serve the prescribed information withing 30 days.
  • Serve all of the safety and regulatory documents: EPC, EICR, Gas Safety Certificate and the up to date How to Rent Checklist.
  • Visit the property to see whether a check-in inventory is needed. If the condition of the property has changed since an inventory was carried out at the start of the earlier tenancy, the landlord may need a new inventory, to be fair to the new tenant.

>> Related Post: How to increase rent

How does a departing joint tenant give up right to the deposit?

Sometimes when a couple breaks up, the person who leaves the tenancy may be prepared to give up their share of the deposit and for it to stay with the tenancy.

Here is an example of wording that transfers the full deposit to the person who retains the tenancy:

I acknowledge and agree that the Landlord may retain my deposit in the sum of £[ ] which was paid by me at the commencement of the tenancy and that I hereby revoke any right, claim or entitlement to these monies which I understand will be held as security for performance of the obligations of the remaining tenant[s], being [name].
Example of wording for departing tenant to revoke right to deposit

Final thoughts

Relationship break down and moving house are two of the most stressful things to happen to anyone in life. When a couple breaks up, it will invariably mean at least one of them moving out of their home, maybe both.

Renters have many legal rights and responsibilities, and landlords can’t just scribble out the name of a joint tenant on a tenancy agreement. Rules need to be followed to make sure that it is done fairly.

As you can see from this blog post, there isn’t one approach that fits all scenarios, and the precise course of action will depend on the circumstances.

Responsible landlords don’t use a relationship breakdown as an opportunity to hike up the rents, just because the tenancy is changing. If a rent review is due, then it would make sense to do it with the new tenancy agreement. But the increase should be in line with what the landlord would have done if they were both staying.

This is a time for landlords to show sensitivity to what their tenants are going through, by behaving fairly and reasonable, as if the positions were reversed.

>> Related Post: The 5 hallmarks of responsible landlords

woman handing keys to man: what happens when tenants break up or fall out
Scroll to Top