Joint tenancies vs Joint Contracts: What are the new changes post December 2022? (Extent — Wales)

This is a short form article providing an overview of the rules on joint contracts in Wales following the implementation of Renting Homes (Wales) Act on 1 December 2022. The information in this article only applies to Wales.

Joint tenancies vs joint contacts: Explaining what’s new in Wales from 1 December 2022

The law around joint tenancies has always been messy in practice. By law, joint tenants are joint and severally liable and this often brings up issues. For example, when one party moves out yet continues to be liable for the rent, property conditions etc.

The joint tenant that leaves would have to serve a “notice to quit” to end their liability. Serving a notice would unequivocally end the tenancy for the remaining party.

The remaining party is then bound by the landlord’s consent to agree to enter into a new sole tenancy. If the landlord refuses, this can mean the remaining party becomes homeless through no particular fault of their own.

In cases of relationship breakdown, courts can assign a joint tenant’s interest to the remaining joint tenant under family/childcare law provisions. But the ever-decreasing availability of Legal Aid, this is a route parties are often unable to pursue due to legal costs. See here for more information on Property Adjustment Orders Property adjustment orders — AdviserNet (citizensadvice.org.uk)

What the Renting Homes (Wales) Act 2016 will introduce

The Renting Homes (Wales) Act 2016 puts joint contract-holders in a much stronger position. It allows them flexibility to withdraw, exclude and add joint contract-holders. There are conditions attached to each provision, which we will look at in more detail below.

Withdrawal: One contract-holder wants to leave the contract

This information applies to periodic standard and secure contracts. If you have a client with a fixed term contract, they will require a relevant break clause to allow them to withdraw.

Withdrawal is the process referred to when one party wants to leave the contract. Unless the contract says different, the minimum notice period is 1 month.

The leaving contract-holder must:

• serve a withdrawal notice to the landlord
• warn their joint contract-holders and give them a copy of the notice.

The landlord must also give a warning and copy of the withdrawal notice — as soon as practicable after receiving it — to the remaining contract-holder

The leaving contract-holder’s rights finish at the end of the notice period. A court order isn’t needed.

If all joint contract holders agree to end the contract, they must ALL serve an individual “contract-holder notice” to end the contract.

Adding a new contract-holder

A contract-holder can only add another person to the contract if they have consent from the landlord. They can’t be given retrospective consent.

If consent is given, the joint contract-holder becomes:

• entitled to all the rights of the contract
• subject to all the duties of the contract

A new process deals with requesting and giving consent.

The current contract-holder makes an initial request: -

• If the landlord gives consent, the new joint contract holder gets added to the contract
• If landlord doesn’t respond, it’s treated as them giving consent 1 month from the request date
• Landlords can ask for more information to make a decision if it is reasonable for them to do so, factors to consider would be size/suitability, affordability of accommodation etc. They must do this within 14 days of the initial request. They then have 1 month from the date information supplied to reach a decision. If they don’t respond, it’s treated as them giving consent.
• Landlords can give consent but stipulate “reasonable conditions.” A contract holder can challenge conditions they think are unreasonable by making a county court claim.
• Landlords can refuse to give consent but must not do so unreasonably. A contract holder can make a claim at the county court for a declaration that the refusal was unreasonable, and for a remedy.

Read here for more info on reasonableness as per Schedule 6 Renting Homes (Wales) Act 2016 (legislation.gov.uk) and Renting Homes (Wales) Act 2016 — Explanatory Notes (legislation.gov.uk)

Exclusion

The Act also allows a landlord or joint contract-holder to exclude a joint contract-holder on the basis of non-occupation or anti-social behaviour. This will be especially helpful in cases of domestic violence.

Exclusion by landlord or contract-holder: Non-Occupation

Both a landlord or a joint contract-holder exclude an ‘absent’ joint contract-holder where the contract requires that they occupy the dwelling as their only or principal home.

A landlord or the “resident” joint contract-holder can give a prescribed warning notice where they believe that the “absent” joint-contract holder neither:

(a) occupies the property currently

(b) intends to occupy it in the future

Both the landlord or “resident” joint contract-holder would need to make a claim to the county court to exclude the ‘absent’ joint contract-holder. There are more steps a landlord must follow before they issue a claim.

The step by step process can be found detailed here: Renting Homes (Wales) Act 2016 — Explanatory Notes (legislation.gov.uk)

Exclusion: Landlord excluding one joint contract-holder for anti-social behaviour

A landlord can exclude a joint contract-holder engaging in prohibited conduct, without ending the contract for everyone. Examples of prohibited conduct include anti-social behaviour, nuisance and annoyance. It is a fundamental term of every contract that the contract-holder(s) must not behave this way.

The step-by-step process to exclude is detailed here: Renting Homes (Wales) Act 2016 — Explanatory Notes (legislation.gov.uk)

This route may prove very useful for victims of domestic abuse if the landlord is content for them to stay whilst the perpetrator is required to leave. It may not provide immediate protection like the family courts can, but it can provide a long-term solution. See here for more about housing options for those experiencing domestic abuse and what orders the court makes to protect a victim: https://www.citizensadvice.org.uk/advisernet/family/gender-violence/domestic-violence-and-abuse/#h-what-orders-can-the-court-make-to-protect-a-client

ADVISER TIP

The position for joint tenants will be much stronger after 1 December 2022, so current joint tenants may wish to hold off on any action until after implementation date.

Mariam Raza is a housing expert in the Renting Homes Wales Team at Citizens Advice

The information in this article is correct as of the date of publication. Unfortunately, we are unable to respond to comments left on the medium site — please contact expertadvicesupport @citizensadvice.org.uk if you wish to give feedback on an article.