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.
Hi me and my girlfriend is in a joint tenency on our council flat I was just wondering our relationship it’s working no more so we have split up and none of us want to move out I just worried because all the bills come out of her bank and I’ve just developed siatica within the last two months and lost my job couldn’t get any help from no where jobcenter etc etc so it causes us to argue and fall out so was just wondering where I would stand I’m feelin abit better now and am starting to find work just all getting abit stressful now
We can’t give individual advice, I’m afraid.
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.
Hi there,
I’ve been married to my wife for two years, she is on the autistic spectrum and has recently fell in love with her ex husband and wants to end the marriage. The tenancy is in her name only and she works full time. I am the primary carer for our 3 year old and also her 11 year old autistic stepson with her ex she is now with. We are both cohabiting and going under mediations. The easy solution is for her to move into private accommodation with her 11 year old in the village and I can still have him after school and remain in the property. I have cared for both children for a year. She is adamant she does not want to give her council house up. Do I stand a chance to get the tenancy changed to my name?
John
I’m afraid we can’t give advice on individual’s situations via the blog.
my ex partner Refuses to take name of tenancy even though we split nearly 2yrs ago I’m now with new partner and have a baby together? and 3 with ex what can I do????
We can’t offer advice via the blog, I’m afraid. But if you have a social landlord you should talk to them about their relationship breakdown policy. You can’t simply get someone’s name off the tenancy if they were a joint tenant so will need landlord’s agreement to a new tenancy.
I need some advice. I live in a council house with my mum, my dad yesterday decided he wanted to leave my mum after 37 years of ammriage, he has found a place and is privately renting. I also have my two year old daughter sleep over three times a week. My dad is happy to take is name of the tenacy. Can i now be put on the tenacy as i am working full time and can afford the rent.
Marc
We can’t advise on individual matters, I’m afraid. But in general, there is no automatic right to be added as a tenant, and the Council would have to deal with the relationship breakdown – people can’t just ‘come off’ a joint tenancy.
I am in a joint assured tenancy with my partner over five years as southern housing associations tenants. I moved out of the flat recently with a notice to end my part of the tenancy informing them of the crises. Southern housing refused my request. What should be my next steps. I need to end my responsibility on the tenancy.
You can’t ‘end your part of the tenancy’. If one joint tenant ends a joint tenancy by notice, the whole tenancy ends for all. You need to talk to the housing association about their relationship breakdown policy and, if necessary, get proper legal advice.
Ok, a married couple have a housing association 3 bed property it’s an assured tenancy of about 14years.
The husband is not on tenancy at all but housing association have approved the husband living there.
The husband & wife split, the wife has a 17 year old son in full time education, she cant afford the rent on the 3 bed property that they are currently in with the husband.
Does the wife;
A) Start divorce proceedings – remain in 3 bed property with son & ask husband to leave he has no right to be there, get 2nd/3rd/4th job to pay for property live happily ever after.
OR
B) Put husbands name on tenancy so it becomes a joint tenancy so husband can remain in current 3 bed property
& wife explains to housing association she can’t afford current 3 bed property but husband can & is happy to carry on tenancy,
would the housing association be obliged to give wife a smaller new 2 bed property for herself & son or housing association wouldn’t offer the wife another home & she is up the creek without a paddle and should of gone with option (A) – she would have roof over her head & home for son and not make herself & son homeless.
The husband is NOT the biological father to son they married 7 years ago.
Thank you for all your help.
Best wishes.
We can’t advise on individual problems, I’m afraid. You should try to get advice in your area – and also look for the Housing Association’s Relationship Breakdown policy.
How does this interact (if at all) with your council house having to be your sole or main home?
It doesn’t for joint tenancies – so long as one person occupies as sole/principle home.
For sole tenancies, occupation by a partner counts as occupation by the tenant.
Could that be a way around for some of these unhappy couples? The ones where they both stay, obviously not, but the ones where one partner moved out decades ago?
A change in the tenancy agreement might do it?
Which is rather the point of the post. You can’t just ‘change the tenancy agreement’ on a joint tenancy.
Yes, I realised too late that I had not been clear. A change in the tenancy agreement could help similar people in the future. And those affected by it now should look at their tenancy agreement (as you have been saying)
Well, that would mean changing the entire nature of joint tenancy, which would involve far reaching legislation. It can’t just be a rewording of the tenancy agreement,I’m afraid.
Can one joint tenant just happily assign their secure tenancy to their partner if both are agreeable though when the decide to split?..assuming no previous successions etc.
No, not for a secure, assured or AST – prevented by statute.
I live in a council house with my ex partner and his 2 children we have a joint tenancy and i currently claim child tax and working tax for both of his children. My ex told me that the council told him that he needs to claim for his children in his name and then the council would be able to rehouse him. How ever i feel he is lying to me and the real plan is to get me out of the house. Would him claiming for the children in his name give him more rights to the house we are in than me.
We can’t advise on individual cases on the site
I am married with two children. My husband holds the secure tenency. I have lived in our house for 8 years as a family We have broken up what righrs do I have to the tenency? Please help
Talk to the council abut their relationship breakdown policy. Also talk to a solicitor about seeking a transfer of tenancy in any divorce.
Thank you for Ur reply can the tenency be transfused with out his permission by the divorce courts
Yes.
elisha. i had a decision that i would have a tenancy transferred to my name and before i had the order he has put the notice of termination of the tenancy so i never got the flat… i went to the council for help im still waiting if they can give it to me through the waiting list… if i had my divorce i would have the order straight away, but divorce proceedings went for longer than the financial order so everything got messed up… make sure everything is in the right order and he cannot do what mine’s done without any concern for his own child… all he said was ” i told you not to mess with me”. GOOD LUCK :D
And this is why people should always seek an injunction to prevent service of notice if a transfer of tenancy is likely to be part of divorce proceedings.
Please could you advise. I lived with my partner for 27 years, 21 of which I was a joint tenant on his previous sole tenancy. He left the property (at my request) 16 months ago. We have a 21 year old who lives here during university holidays and our 18 year old who is in full time education until June 2017. Is it relevant to a property adjustment order that she lives here (even though she is 18) and my ex partner is the subject of a restraining order, will this affect my case? Thank you.
We can’t advise on individual cases, I’m afraid.
A newly divorced man living in social housing for 20yrs, has two working sons living with him and ex wife has decided to remove her name from the tenancy. Can he be asked to move out?
If the tenancy was in her name alone, yes. If joint tenancy, maybe, but should be covered by landlord’s relationship breakdown policy. But if she serves Notice to Quit, he has a problem. Should have been dealt with in divorce – assigning tenancy.
im a father of two children who as just separated from my partner of 12 years im a joint tenant on my property a 3 bed housing association property ,i was separating from and had been waiting to be rehoused by my local authority for 18 months my partner had me arrested very recently and that was the first time i have ever been arrested in my life i am 50 years old, i was released with no further action and told i could go back into my property i gave her a couple of days to let things settle then went back to which she refused me entry i called the police and they to refused me entry as they say it is for safe guarding reasons i have never been violent and have never made threats to her or my children why am i not allowed back to my property can you advise me on this place
We can’t advise on individual cases via the site. I suggest seeking advice via Shelter, a CAB, or the links at the bottom right of the page.
Complicated Joint Tenancy situation: A married couple living in a one bedroom London Council flat, the husband was married previously but divorced 14 years ago, the current marriage of 12 years was good. The husband died in July the current wife advised the Council of the death as the husband was the joint Tenant with his previous wife, both names still recorded with the Council, the new marriage details were never given to the Council. The previous wife is still living locally not certainly not interested in the flat.
The Council has instantly told the current wife that she must now leave the flat as she has no claim to succession. The current wife, aged 55, has not worked for many years as she has an eating disorder that creates a damaging blood problem, her husband, who was aged 75,was able to claim additional benefits to help support them both. Without an income and now possibly without a home, could the Council accept that her 12 year marriage should allow a succession to take place?
Thanks,
Alan
Hard. Succession is first of all from joint tenancy to sole tenancy on death of one joint tenant. And that is automatic, by operation of law. Sounds a decent case for discretionary arrangement by LA, though. And then there may be the possibility of seeking post death home rights – but that needs a family lawyer.
Hi can I have some advice, me and my ex partner moved into this flat together so 2 years ago now since we spilt as it’s a joint tenancy who has the right to stay? As I have 3 children 2 of which were with him and his on disability allowance too? If I choose to leave would the council rehouse me? So he stays and doesn’t became homeless thanks
We can’t give advice through the site. I’d strongly suggest getting advice from a local law centre or CAB, or through Shelter
hi, i have almost had a court order, i will have a decree nisi on 14/12 and then court order to transfer the tenancy over to my name. my husband who lived in the property soon after the court hearing given his notice to the housing association that he will move by 4/12, which means by the time i get the court order there is no tenancy to transfer. i have lived in this property together with our son and husband for 7 years. i am desperate. i need this flat for me and our son, looks like i have been screwed over. Housing association say they cannot give me the flat. has all this went to waste????
Talk to your solicitor urgently. May need an injunction.
what would it contain? housing association to give me the property? his tenancy run out yesterday, so they cannot prevent him now from not doing it :(
We can’t advise on specific cases. Talk to your solicitor urgently
Hi I’m currently living in my mums 2 bed flat and she. Has given her notice to end the tenancy due to moving away and it ends on the 19th December do I have to leave on that date
You will have no right to remain there. The landlord would bring a possession claim if you did.
Even if it’s council and what’s a possession claim please
Most certainly if it is council. And that is court proceedings to evict you.
What if the other tenant decides to leave the property with a written signed and dated mutual agreement stating that they would remove their name off the tenancy. After leaving the property refused to take their name off. Can you take them to court?
They can’t just ‘remove their name off the tenancy’. Even if they promised to. The only way is for the landlord to agree a new tenancy in different names.
I don’t know what you would take them to court for, because I can’t see what the loss would be.
If their name is still on the tenancy, they can still come back. They current have a tenancy on a different property they moved into. So they have two separate tenancies.
Yes. And the liabilities of both. But they can’t just take their name off the tenancy. They remain the tenant until the tenancy is ended (and a new one granted).
Thank you very much! It’s helpful to know.
Thank a for your advice!
A difficult one! Joint council tenants for 26 years, separated a long time ago, both living in 3 bed property with adult children, one tenant has disabilities and property has been deemed not suitable for them, council are offering the joint tenants a one bedroom transfer based on medical needs assessment that current property is not suitable and housing assessment that as joint tenants only entitled to one bedroom, children do not in count in household transfer as non dependants due to age although liable for rent under housing benefit rules and so therefor will be made homeless. Under councils own overcrowding rules age 21 and over are entitled to their own room so why don’t they count in transfer application. Both joint tenants have to move even though there are four of us in a three bedroom property and one joint tenant does not have any need to move. Help please.
We can’t advise on individual cases through the site. I’d strongly suggest you seek legal advice, though this is complicated because legal aid is not available for allocation or transfer cases. Try the links at the bottom right of the page.
I got divorsed in India jan 2016 because my ex husband left me and went back there.He is a non resident of uk.we brought a property together in 2013 feb. He left in 2014 sept. From that point he has not paid any monies towards the bills/mortgage etc. I soley manage eveything on my own and have dine since then. I need a new mortgage and am in position to have one soley in my name. The ex currently in india is refusing to sign TR1. What can i do about this?
We can’t offer individual advice through the site. I’d suggest you seek advice from a solicitor.
Really need some help have been separated from ex husband for over 2 years and are now recently divorced. I have recently found out that my name is still on the joint tenancy (even though I thought this was sorted 2 years ago when I signed forms with the council to say i no longer live there! And now they are now denying this!) Anyway the council are now refusing to remove my name from the joint tenancy and said I will have to apply to the courts to have my name removed. How exactly do I do this? Please any help Much appreciated thanks .
Contact a local law centre or CAB. We can’t advise on individual matters.
A married couple lives in a council house for 10 years, the split up and one of them moves out. They get divorced but another 8 years down the line the question of tenancy comes up. One tenant is still living in the house but the other one has not been back since they moved out but their name is still on the tenancy. The remaining tenant would like to move on to apply for a new house. The tenant that moved out would like to apply to buy the property using their discount. Is this straight forward possible or will the fact that the moved out tenant does not sign the tenancy over to the remaining tenant stop them from applying for another property? Also will the tenant that moved out actually still have that right to buy?
We can’t give advice on individual matters through the blog, I’m afraid.
Hi,
I am a joint tenant of a council property with my wife. I have been paying the rent for the last 7 years, but lost my job last year and am currently looking for work. My wife is now paying. Our relationship has broken down and we have seen the housing officer who says they no longer do relationship breakdown and we will have to put up with each other for the children’s sake. She is however being increasingly confrontational and trying to bully me out of the house. She wants me to divorce and leave and agree to give her custody of the kids. Otherwise she will go to court, where she will get custody since she is the mother. I can’t afford private accommodation and don’t want to leave my kids with her. My strategy is to sit tight and not make myself homeless. I’d ideally like a situation where we split and get joint custody, but worried that I might get my right to live with my kids taken away by the courts. Based on what I’ve written, am I in danger? (I can’t afford a family lawyer!)
Peter, we can’t give individual advice via the site.
If someone is living as a non dependant for over 3 years in a flat share, owned by the housing association, Do they have a right to being rehoused by the housing association?
In any scenario?
General advice needed.
I am the sole tenant of my 2 bedroom council house. I have lived here for 3 years. I have two children. I am having relation breakdown with my partner. She wants me to move out of the house. I am aware legally she can’t do so.
What is her rights. As I am not willing to move out.
Would the council give her another place.
Sorry, we can’t advise on individual matters.
What about hypathetically. General advice in regards to the above situation.
Thanks
Oh come on…
Hi there,
Are you able to let me know how we would get a deed of assignment? Would I just need to contact law firms that deal with something specifically to do with housing?
I have tried looking online but I can’t find anything that specifically mentions a deed of assignment.
Thanks so much in advance.
You need a solicitor because you need to know whether you can do it, and what precisely is being done.
An ex, violent husband with an expired occupation order is returning to the family home. One of the party wants to sell the jointly owned home, the violent partner doesn’t. A court order to sell will be applied for. If the non-violent party leaves the property, the other has made it clear they will change the locks and rent out the rooms. What rights does the non-violent party have if they leave the premises.
https://childlawadvice.org.uk/information-pages/legal-aid-for-family-law-matters/
Legal aid is available for the following family issues:
family mediation, to resolve disputes about children and finance on a relationship breakdown – for more information on how mediation costs can be covered see our page on Family Mediation;
applications for a non-molestation order or occupation order;
applications for a restraining order under the Protection from Harassment Act 1997;
depending on this person’s income she can get free legal aid. If she is being threatened she should call the police.
I am applying for a transfer under family law of the secure joint tenancy I hold with my ex-husband to my name only – with his consent. I have just found out that the local council, my landlord are to be notified of the court proceeding. Do the Local Council Landlord have the right to force me to move out of my home of 22 years into something smaller if it suits their purposes during this order. Lois
No more than they did before.
hi I’ve been a housing association tenant for over 4 years with my boyfriend. we are not married
we are both on the tenancy agreement, he’s moved about 4mths ago and I want to move my new boyfriend in .
im just thinking about a year down the line will my new boyfriend be able to go on the tenancy as he is helping pay rent bills etc, is there a certain time frame I can add him to the tenancy to become a joint tenancy
We can’t give individual advice.
hi im in a housing association bungalow with a joint tenancy with my boyfriend, I want to leave and come off the tenancy but my soon to be ex wants to keep the tenancy on and stay in the bungalow can he do this.
We can’t give individual advice.
Living with partner my names not on tenancy been together 4 years she wants me out ..what’s my rights as I have no where to go thanks
We can’t give individual advice through the site. You should try a law centre or Citizens Advice.