To everything there is a season and housing issues are no exception. While winter brings a flood of disrepair cases, Spring is the time for relationship breakdown.
Whether involving partners or spouses, this brings its own housing problems, particularly involving joint tenancies. And of course the once-happy couple have a joint tenancy. Prompted by Family Lore on Stack v Dowden, this is a much delayed look at relationship breakdown and joint tenancies.
For social tenancies (housing association or Council), relationship breakdown is a serious issue. The landlord cannot simply transfer the tenancy into the sole name of the remaining person, or at least not legally. This usually comes as an unpleasant surprise to that tenant.
Many social landlords operate a relationship breakdown policy, but these rely on the consent of the departing, no longer resident, partner to giving up their tenancy, so that a new sole tenancy be created for the remaining tenant. This consent is often not forthcoming, or the person has vanished.
If the ex-partner demands to return to the property, there is nothing to prevent them (save where there is a history of threat of abuse or violence).
Or perhaps the person who has had to leave, who might have children with them, say, or health issues or something else that would make them vulnerable for the purposes of a homeless application, actually tries to make such an application.
This person will be told that they are not homeless, that the joint tenancy means they have accommodation available to them and that it is reasonable for them to remain there, (unless, of course, there has been violence, or there is a direct threat of violence). Merely hating the sight of each other does not make it unreasonable for both parties to remain in the property.
Should this person then give notice to end the tenancy – which ends it for the remaining occupant as well – they will be deemed to be intentionally homeless and refused the full duty to accommodate by the local authority.
The Court does have a power to make occupation orders under s.33 Family Act 1996, whether the couple are married or not, but while an order to allow one person to occupy the property and the other person be excluded is possible, the Courts are very reluctant to use these powers except in such situations as domestic violence, for the clear reason that making such and order is depriving the excluded person of a valid property right. The Court has regard to ‘the housing needs’ of each party and where there are children, the Court may be keener to give an occupation order to the primary child carer, but this is not certain. The Court can also make an Order for the transfer of the tenancy into a sole name under s.53 of the Act for spouses, civil partners and co-habitants, but, as this is a permanent deprivation of a tenancy right, the Court will need very good reason to make such an order if the application is opposed.
The tenancy can also be transferred for the benefit of a child, under Childrens Act 1989, where there are children involved. As the benefit has to be for the child, not the tenant, any question of the child’s (primary) residence should be clear and sorted.
If the couple are married, the situation is a little better, as another of the few places in which the Court can actually re-assign tenancy rights is in divorce proceedings, under the Matrimonial Causes Act 1973. Taken as a part of the divorce, the Court may be more willing to make an Order as a part of the proceedings. However, this takes time and may be contested, so where there is an immediate housing problem, this isn’t an answer.
It may be that reform of the law on co-habitees property rights would give the Courts the power to re-assign tenancy rights outside of these limited situations, but at the moment, things are very difficult for ex-partners with joint tenancies.
Sadly, I doubt that any reform of the law on co-habitees property rights is likely to extend to conferring upon the courts the power to deal with the sort of situation you refer to here. It is doubtful whether there will ever be a very satisfactory solution to dealing with the issue in the narrower context of the apportionment / distribution of property (ownership) rights upon the dissolution of a relationship (non-marital). As much is clear from previous failed attempts to construct / define an appropriate way of resolving the problems associated with this issue (and it’s not clear where, if anywhere, the current Law Commission consultation will take us). The whole thing is a complete mess and until there is some progress, separating couples are to some extent at the mercy of ‘palm tree justice’. It seems that issues of property law and family law do not necessarily conflate very satisfactorily. L2B
I have fallen foul to this area of law since my mother and former husband divorced in 2004. My mother notified the housing association on numerous occasions to inform them of the situation and they did nothing. Unfortunately in October 2007 my mother passed away and after rather distressing wrangling with the Housing Association was advised that my sister and I were on the tenancy and that succession could be made by one of us. My sister, living with her partner, advised the housing assocation that sh did not wish to succeed the tenancy meaning I could succeed the tenancy. The only problem is that the property is for people 55 years of age with a disability. I was therefore told I could succeed the tenancy but could not remain in the property. I was then given a fantastic christmas present of a letter stating my mother’s ex-husband was still on the tenancy and that he could succeed the tenancy and not myself, this is despite the fact that he is living elsewhere and has remarried. I have sort some advice and found it difficult to come to a conclusion as to what my rights are despite discovering that under the Family Law Act 1996 Ground 31 my mother’s ex-husband surrended his right to the tenancy upon the desolution of the marriage. However as neither ended the joint tenancy I am not entitled to the tenancy my mother held with the Housing Association. Can anyone shed light on this or point me in some sort of direction. As I have now been told I am a tolerated trespasser, will be served with a notice to quit and will be told to pay charges for damaged, which I have been advised I do not have to pay as this would amount to me paying rent where I have been told by the Housing Association I cannot.
Oh dear, Swanny, not a happy situation.
The general rule is that a joint tenancy is not affected by a divorce unless the tenancy is specifically assigned. Unless that was done, it is likely that the ex-husband’s joint tenancy continued. To end a joint tenancy otherwise requires one of the tenants to give notice, which ends the tenancy for both, which I presume has not happened. The ex-husband will get the tenancy by survivorship. Unfortunately this counts as a succession. If the tenancy was an assured tenancy, this is the one succession allowed. If it is a secure tenancy (rare), it may be possible for the ex-husband to assign the tenancy to you.
You should get advice on the situation immediately. See the ‘Find an Adviser’ link above. I can’t advise you here and in any case, couldn’t without seeing the documents in any case.
By the way, if the Housing Association are right, you are a trespasser, not a tolerated trespasser. The money the Housing Association will seek is ‘use and occupation charges’. This is not the same as rent. If the HA maintain you are a trespasser, they will not agree to take rent from you (only tenants pay rent), but will demand the same amount in use and occupation charges. The Court might well award them those charges.
I now fall into the tricky situation of married joint tenant where the marriage has broken down. My local authority have already told me that I can only end the joint tenancy with my husbands consent, but should he consent he will then be classed intentionally homeless. Due to high debts we can not pull the money together to rehouse him in the private sector. Added to this my son wishes to stay with his father (leaving me with our 2 other children) meaning he now requires a 2 bed property which he can ill-afford on top of the mounting debt. Seeking resolution to the debt problem will invariably affect his credit rating thus making it difficult to secure private sector housing. So we are now having to share the house we currently live in. Tensions in the house are extremely high, we argue most of the time, the kids are now arguing because we are arguing and the situation is becoming exteremly intolerable with no solution in sight. What started as an amicable agreement to seperate which is the more beneficial for our children, is now becoming a war, by the time we find a solution the family unit will have completely broken down to the detriment of the children. People in social housing are there for a reason, surely there should be more help when a relationship breaks down to ensure the emotional and menal wellbeing of the children remains the priority. Whilst we try to maintain some stability and harmony the desperate situation will inverably affect both of us.
I am a joint tenant with an ex unmarried partner who has now ( I believe) purchased property with his mother, what is my legal position , he has been out of the house for nearly 5 years and my youngest son is 14.
My loal council has told me either I need to get a letter from him terminating his rights to the tenancy or I need to take him to court but having read the above I’m not sure a court would be willing to grant me the sole tenancy.
If anyone has advice I would be really grateful.
Dawn,
Your situation is extremely difficult and you have my sympathies. I don’t know if you are considering divorce, but a re-assignment of the tenancy as a part of the divorce proceedings would not necessarily result in the party who didn’t get the tenancy being considered intentionally homeless. If the residence of your son was part of the divorce order terms, then there shouldn’t be any question of priority need either. I suggest you talk to a family solicitor. Your husband will also need a family solicitor, but one that does housing or can refer him to a housing advisor on the homelessness issue.
Sophie,
I strongly suggest you find a housing or family solicitor. Try the ‘Find a Legal Aid Legal Advisor’ link at the top right of this page. In your situation, you may have a shot at getting the tenancy transferred to your sole name under the Family Act or Childrens Act. Without knowing the situation in detail, I obviously can’t comment on your chances, so get full independent advice.
Nearly Legal
My mother and father seperated 27 years ago and my mother bought my father’s share of their flat, her name was transferred on to the property and she became the sole owner.
My father is now homeless and in hospital, he is due to be discharged and the local authority have said that he will not be deemed homeless as he has a right to reside in my mother’s home (the matrimonial home).
My parents never got divorced but have had seperate finances since seperating.
Any advice would be much appreciated.
hi,i live in a housing association house and have done so in the same property for 10 years,it is a joint tenancy with my eldest 2 childrens father who left the family home 6 years ago but refuses to take his name off the tenancy even though there is no chance of a reconciliation and my current partner now lives with us and our own child and has done so for 4 years.i have talked to the housing association about removing him from it without much joy from them,i have heard that after a certain amount of time of the other tenant not living in the property their name does eventually get removed?any information you can help me with would be much appreciated,
thank you.
Joanne, we can’t advise on people’s situations on the blog, I’m afraid. But, if yours is an assured tenancy, then what you have heard about the name being removed after a certain amount of time is not true. Ask your housing association about their relationship breakdown policy – but this will probably need your ex’s consent.