Ending joint tenancies: equality impact assessment

Background

With the introduction of the Private Residential Tenancy (“PRT”) (see section 48 and section 78(3) of the Private Housing (Tenancies) (Scotland) Act 2016^[4] (“2016 Act”)) landlords cannot place time limits on the tenancy and one joint tenant can no longer terminate a joint tenancy on behalf of all the joint tenants. This ensures that no tenant can inadvertently be made homeless.

Currently, where there is more than one person named on a tenancy agreement as the tenant, the tenancy will be a joint tenancy. Joint tenants are all responsible for the total amount of rent in their tenancy agreement. This is sometimes called joint and several liability. If one tenant does not pay their share the landlord can ask any or all other tenants to pay. The landlord can take legal action against any or all joint tenants to recover the money if the amount is not paid. If a tenant moves out without ending their tenancy correctly they will still be responsible for paying rent. The landlord can ask them for the money or ask any remaining tenants to pay the owed amount instead.

As there is no specified time limit to end a PRT, all joint tenants must agree and sign the Notice to Leave, giving the landlord at least 28 days' notice in writing (unless a shorter notice period has been agreed). If the other joint tenants agree for another joint tenant to leave, but want to continue living in the property, they can try to negotiate a new agreement with the landlord’s permission. Additionally, they can seek to arrange for another tenant to move in to replace the person who wants to leave and the tenancy is either assigned to the new tenant or a new tenancy is created.

However, if the other joint tenants do not release the tenant who wishes to leave, all tenants will continue to be jointly and severally liable until the tenancy is ended through mutual agreement, even where one of the tenants no longer lives in the property.

Concerns have been raised regarding the negative impact of these requirements on tenants, often students but also those experiencing domestic abuse. Where relationships have broken down, refusal to allow another joint tenant to leave the tenancy can be used as a method of financial and coercive control.