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.