Joint and Several Tenancies

Joint tenancies can be agreed upon with two or more people from the outset of the tenancy. Each can then be responsible jointly and severally (individually) for meeting the tenancy terms in full, including paying the rent. This is known as joint and several liability. Joint and several liability only arise where it is agreed upon. If nothing is agreed they will be jointly liable.

For example, if a property is let jointly and severally to four tenants, A, B, C and D, for a monthly rent of £400 (with each agreeing to pay £100 each), and C decides to leave, they will all each remain liable under the contract for all the rent. So C is still responsible for rent even though they may not be living there, and A, B and D will each be liable to the landlord for all the rent, including the £100 share from C. This situation will continue until either vacant possession is returned to the landlord or a new tenancy is signed, for example, with A, B, D and perhaps a new tenant E.

Suppose one of the joint tenants wishes to vacate. In that case, it is best to regularise the situation as soon as possible by signing a new tenancy agreement with the remaining and new tenant(s) so long as any replacement tenants can be referenced satisfactorily. A landlord should not allow the situation to drift. Instead, a proactive approach should be taken to ensure the remaining tenants sign a new tenancy agreement. Failure to do so could cause the landlord difficulties in repossessing the property. Suppose the tenants provided a guarantee with the original tenancy. In that case, the landlord should ensure that a new guarantee is provided with any new tenancy or that the old guarantee will apply to any new tenancy granted to the same tenant.

Technically a tenancy can only be in the names of four tenants; as in land law, only four people can hold a legal interest in land. However, suppose there are more than four tenants who wish to share. In that case, the additional tenants will still be liable for the rent and everything else under the contract, and their co-tenants will be deemed to be holding the tenancy in trust for themselves and the others. Practically, therefore, the four-name rule is not a problem.

Permitted Occupiers

The general rule for a joint and several tenancies is that all occupants aged 18 or over should be named tenants on the tenancy agreement.

Permitted occupiers should generally be avoided because it can be challenging to understand the correct possession procedure if there are occupiers in the property but not named as tenants on the tenancy agreement.

The exception to the general rule will be if a family is occupying with their children. The children wouldn't ordinarily be named tenants even if they were adults. It wouldn't be expected that children living with parents would be liable for the rent or damages.

Otherwise, many tenancy agreements will allow "permitted occupiers" to be listed. Any occupiers of any age can be listed if you wish.

A permitted occupier will essentially be a lodger of the named tenants. Care should be taken not to do some act that could convert them to being a tenant, such as accepting rent or taking repair instructions.

Listing permitted occupiers can be helpful for the right to rent or overcrowding rules because it effectively gives consent to a limited number of occupiers. Suppose more occupiers are found to be at the property later. In that case, it will be clear from the tenancy agreement the total number of occupiers (not just tenants) permitted when the tenancy was granted.

Overcrowding and Minimum Bedroom Sizes

When granting a joint and several tenancy (with or without permitted occupiers), landlords commit an offence if they knowingly give a tenancy that would result in overcrowding.

The minimum bedroom sizes for licensed properties are covered in the “Licensing of Private Rented Properties” section earlier.

Part X, Housing Act 1985, is summarised in this section, which applies to all dwellings.

Under the legislation, a dwelling is overcrowded if it contravenes:

• the room standard, or
• the space standard

The Room Standard

The room standard provides that any bedroom or living room must not accommodate two persons of the opposite sex unless they live together as married or civil partners. This excludes children under the age of 10.

The Space Standard

The space standard takes account of age: babies under one year are not being counted, and children under the age of 10 are counted as half a unit.

The permitted number of persons relating to the number of rooms available in the dwelling for sleeping purposes is whichever is the lowest of:

The number specified in table 1 relates to the number of rooms available for sleeping purposes and

The aggregate for all such rooms of the numbers specified for each room of the floor area specified in column 1 of table 2 below.

No account is taken of rooms with a floor area of fewer than 50 sq. feet.

A landlord can be prosecuted for overcrowding if any of the following applies:

• the landlord or agent had reasonable cause to believe that the dwelling would become overcrowded
• the landlord or agent failed to make inquiries of the proposed occupier as to the number, age and sex of the persons who would be allowed to sleep in the dwelling
• notice is served on the landlord or agent by the local housing authority and fails to take such steps as are reasonable for securing the abatement of the overcrowding, including, if necessary legal proceedings for possession of the dwelling.

A suitable application for accommodation completed by the prospective tenants, which asks for details of all proposed occupiers, will be a helpful document given the ability to be prosecuted if inquiries were not made before the tenancy was granted.

An occupier can also be prosecuted if they cause or permit the dwelling to become overcrowded.