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23 November 2020

What will happen to our rented house if my partner and I separate?

Following on from our insight last month into how properties that are owned by cohabiting couples will be dealt with upon separation, we now turn our attention to what happens when couples live in rented accommodation.

Whilst the desire to own a home is still a goal for lots of people, perhaps inspired by the traditional notion that ‘the English man’s home is his castle’, with ever increasing house prices and a greater number of restrictions and requirements attached to mortgage lending, for many home ownership is, unfortunately, an unachievable ideal. There are also those, particularly those who work in more transient industries, who prefer the convenience of renting and the ability it provides for them to move around when required. Whether by choice or necessity, the latest home ownership survey confirmed that in the last 20 years the number of people living in rented accommodation has almost trebled, with this style of living now accounting for a fifth of all households in the UK.

Those who choose to live with their partners in rented accommodation are not isolated from the difficulties that living with a partner can bring. Sadly these relationships can still break down, and when they do, questions invariably arise about the occupation of the family home and perhaps most importantly who bears responsibility for the tenancy agreement that is in place.

Who is the tenant?

The first step is to establish the legal position regarding tenancy of the property. Most people know whether or not their name is listed on the legal tenancy agreement for a property, but if you do not then this can easily be checked by reviewing the tenancy agreement in place.

When checking the tenancy agreement, it is important to understand that there is a critical difference between being named as a ‘tenant’ within a tenancy agreement and being named as an ‘occupier’. An occupier is someone who is allowed to live at a property with a tenant but is not a tenant themselves. This means that they are not bound by a tenant’s responsibilities (eg paying rent, looking after the property, etc) but importantly in the context of a separation it also means that they do not have any of the rights that a tenant does. As a result, they are not automatically entitled to continue to live in the property.

What happens when the tenancy is in joint names?

If both you and your partner are listed as tenants of the property, then both of you will have obligations and responsibilities to your landlord in respect of the property. Most notably, the obligation to continue to pay rent. As well as the right to reside in the property.

Upon separation, it will be up to you and your partner in the first instance, to decide what should happen with the property. If you are both going to move out of the property, you will need to give notice to your landlord (in accordance with the specific terms of your tenancy agreement) before ultimately moving out of the property. Importantly, until the point that your tenancy comes to an end, you will both need to keep up with the obligations you have under the terms of the tenancy, so you will both need to continue to pay the rent (and any other payments) that is due.

If one of you wishes to remain in the property, then you will need to liaise with your landlord about having the tenancy transferred from your joint names into that person’s sole name. Your landlord may require the person that is remaining to undergo some additional financial checks, to ensure that their credit rating has not altered since the original tenancy was taken out and importantly for your landlord, to ensure that they will be in a position to pay the full rent due on their own. Each landlord will have their own specific requirements, so it is important that you liaise with your landlord about precisely what they require.

What happens if my partner and I cannot agree about who should remain living in the property?

If you and your partner are both tenants but cannot agree on which of you should remain living in the property, then either one of you can make an application to the court, for a Judge to make a determination of this. When considering such an application, the court will consider all of the circumstances including yours and your partner’s abilities to rehouse in alternative accommodation, as well as your history as tenants (ie have you been good tenants who have paid rent on time, kept the property in good order, etc). Ultimately, the court will need to balance yours and your partner’s positions against each other before determining which of you should remain. These are very often finely balanced decisions.

What happens when the tenancy is only in one person’s name?

If the tenancy agreement is only in one person’s name, then when a relationship breaks down the person who is not named on the tenancy agreement has no legal right to stay in the property and can be asked to leave. The breakdown of a relationship is already a very difficult time, so to also be in a situation where you can be forced to leave your home, can be utterly heart-breaking. This can be even more difficult in situations where the tenancy / property is connected to the employment of the family, for example, an agricultural tenancy in relation to a family farm.

If the tenancy is not in my name is there anything I can do about it? Can my partner transfer the tenancy to me? 

All is not lost, however, as there are provisions within the Family Law Act (and for those couples who have children, in Children Act) that can offer an alternative to those who find themselves in this vulnerable position.

In these circumstances, the court can make an Order that tenancy agreement be transferred from the name of one partner to another. Just as with applications from joint tenants the court must consider all of the circumstances of both partners and in particular, their respective abilities to rehouse in alternative accommodation, as well as their history as tenants (ie have they been good tenants who have paid rent on time, kept the property in good order, etc). In addition, where the tenancy is only in one person’s name, the court is also required to consider the nature of the parties’ relationship (in particular the level of commitment between them), how long the parties have lived together and if one person has already moved out the period of time the parties have not been living together. It is, therefore, vital that if you find yourself in this situation you act quickly. Once again in making a decision the court will need to balance yours and your partner’s positions against each other, which are often finely balanced decisions.

If you are concerned about your situation and would like some further advice about your particular circumstances then please contact a member of our specialist family team who will be able to assist you.

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