Q I shared a tenancy with two flatmates, who moved out earlier this year. I have found replacements, but our landlord wants to charge £300 for each name change. There’s no mention of this in the tenancy agreement. Can he do this?
A The answer involves the legal distinction between two kinds of tenancy. Historically a group of people who owned land together did so either “in common” or “jointly”.
Common ownership means each individual holds a separate share of the property and has the right to transfer ownership of that share to someone else.
Joint ownership is where two or more people have an equal and indivisible right to keep or dispose of the whole of the property together. That is why joint tenants are said to always act together, since the moment one of them drops out, the tenancy ends. Although co-ownership remains important in other areas of law, tenancies in common are largely academic for tenancy agreements and leases. Under section 34 of the Law of Property Act 1925, it is no longer possible for a lease or tenancy agreement to be granted to tenants in common. A tenancy granted to more than one person is always held as a “joint” tenancy. Each tenant is liable for the whole rent until the end of the fixed period of the tenancy (although the person who pays is entitled to a contribution from the others).
During the fixed period of the tenancy agreement, a tenant cannot simply transfer their “share” to someone else, even if the tenancy agreement permits this. New tenants require a new tenancy agreement, and a landlord is under no obligation to grant them one.
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A change of “name” is in fact a new tenancy agreement. Your landlord does not have to agree to a new tenancy and may charge a fee for his consent.
Mark Loveday is a barrister with Tanfield Chambers. Email your question to: brief.encounter@thetimes.co.uk
