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I am currently subject to a fixed-term joint tenancy (assured shorthold) agreement with two other tenants. One of the joint tenants wishes to exit the tenancy early. The tenancy agreement describes the procedure for leaving the tenancy before the end of the fixed term:

9 DEALINGS

9.1 The tenant must not assign the Property or any part of it although the Tenant may assign the whole of the Property after the first 3 months of the Term has expired subject to first obtaining the Landlord's written consent (such consent not to be unreasonably withheld).

9.2 Where one or more of the individuals comprising the Tenant (the Outgoing Tenant) wishes to leave before the end of the Term and has found another person or persons (the New Tenant) acceptable to both the Landlord and the remaining individual or individuals comprising the Tenant (the Remaining Tenant), the Outgoing Tenant and the Remaining Tenant may assign the Property to the Remaining Tenant and the New Tenant subject to first obtaining the Landlord’s written consent (such consent not to be unreasonably withheld).

9.3 The Landlord may reasonably withhold consent in these particular circumstances if, amongst other matters:

(a) The New Tenant (or where appropriate any individual comprising the New Tenant) is not a student pursuing a course of study at an education establishment or will not become such a student within 3 months of the date of assignment; or

(b) The New Tenant (or where appropriate any individual comprising the New Tenant) has not produced satisfactory financial and personal references; or

(c) The Remaining Tenant (or where appropriate any individual comprising the Remaining Tenant) informs the Landlord that the New Tenant (or where appropriate any individual comprising the New Tenant) is not acceptable; or

(d) The Landlord is reasonably of the opinion that the New Tenant (or where appropriate any individual comprising the New Tenant) would be incompatible with the Remaining Tenant (or where appropriate any individual comprising the Remaining Tenant).

9.4 The Tenant must not sublet or part with or share possession of the Property or any part of it.

However the candidate replacement tenants have not been acceptable to either me or the other remaining tenant. The letting agent has informed us that once three candidates have been nominated by the tenant wishing to leave the agreement, we must accept one of the candidates. This "three candidate" rule is not in the tenancy agreement.

Can a letting agent change a tenancy agreement without the consent of the tenants in this way?

Thank you.

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  • 1
    Would you and the other current tenant be amenable to splitting the rent two ways instead of three ways, so that the landlord is still making the same amount of money?
    – nick012000
    Feb 5 at 7:13
  • 1
    In a joint tenancy agreement you're potentially jointly liable for quite lot on behalf of the new tenant (i.e. damages they cause, rent they don't pay, bills they run up) so being required to agree to that would be pretty nasty
    – DavidW
    Feb 5 at 9:31
  • Perhaps they don't mean that there is a contractual limit of 3 candidates, but instead mean that the landlord will default to finding any candidate after that unacceptable, to limit their potential effort(s) and cost(s) in the service of the departing tenant? 9.2 requires that the landlord find the candidate acceptable; they may be saying that no candidate after the third candidate will be seen as acceptable.
    – tbrookside
    Feb 5 at 18:53
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    Side issue: "must not assign the Property of any part of it", specifically "of" any part of it. Is "of" a typo for "or" ?
    – Tim
    Feb 7 at 14:14
  • Yes sorry, that is my fault as I typed this up from my scanned pdf copy of the contract
    – Lorcán
    Feb 8 at 9:33
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No

All parties must agree to change a contract.

On the face of it, the New Tenant has to be “acceptable to both the Landlord and the remaining individual or individuals comprising the Tenant (the Remaining Tenant)”. It goes on to describe what the landlord may consider in making this assessment; there is no such imposition on the Remaining Tenant.

However, there is implicit in a contract a requirement that the parties must act reasonably when using discretion. If Remaining Tenant repeatedly rejects every proposed New Tenant then this raises the question of if they are acting reasonably. Have you clearly articulated why the proposed replacements are unacceptable and are those reasonable reasons?

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    I'd add to this, that the landlord will be presumed to have a good idea what he/she is doing, given they run it as a business and chose to let it, in the first place. (A bit like how consumer law is tilted towards consumers and gives business buyers fewer rights). The landlord knowingly chose, offered and agreed a contract that said what it said. If he now regrets that choice, he can not impose his regrets or lack of understanding of his own business area, on others who entered it in good faith on those terms. He may sue his lawyer if he thinks the contract was mis-drafted, but it won't work
    – Stilez
    Feb 4 at 13:56
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    Also noting the point about implicit requirement to act reasonably. I'm not 100% sure about this. Elsewhere the contract says "not to be unreasonably withheld", in many places. It does not say that of the Remaining Tenants rejection. It could have, but doesn't. I would argue that speaks volumes. The landlord cannot unreasonably refuse - but the remaining tenants can. I'll add this as a separate answer come to think of it.
    – Stilez
    Feb 4 at 14:01
  • There is always a requirement to act reasonably. The absence of a phrase making that explicit in a particular contract does not override it in general.
    – Nij
    Feb 4 at 18:32
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    @Nij that is not correct. In many case a party has "sole discretion" or "wide latitude". In the classic case of a lease providign that a sublet mu7st be appro9ved by a landlord, in several US states at least, if "consent shall not be unreasonably refused" or similar language is not present, the landlord may refuse consent for any reason or none, and such a provision is often used by a landlord whose policy and intent is never to consent to any subleasing. Feb 4 at 20:09
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    Nij - Acting reasonably is not the same as giving up ones rights. Trivial example, I can refuse to let you in my home, and you can say "but its reasonable to let me in" as much as you like...... It doesn't matter. The same will apply here. Perceived unreasonableness or a wish that the contract was different than it is (and therefore that its "unreasonable" not to agree to change it), is not in itself sufficient to create a breach of contract. The court will look at what was stated (express) and clearly/obviously mutually understood (implied).
    – Stilez
    Feb 5 at 15:30
12

Short answer: no. You're likely to be right.

The law will look at the contract in two ways that affect you.

Landlord presumed to know what he contracted, since its his business

Firstly, the fact that the landlord (I suspect) drafted it, and in any case entered it as his/her business. As with consumer law, the law assumes if you do something as a business, you should know more than a layperson casually does. You get less sympathy for self created binds.

The landlord chose, probably offered (you don't say), and agreed these terms. He or his agent can't decide he now regrets them and impose his regret on the other parties by inventing rules that (for him) would unilaterally "fix" it, and a court won't let him do so.

Intentions of parties

That leaves the question of whether the repeated refusal is valid under the contract.

A contract contains express (=explicitly stated) terms, and implied terms. Both matter, but a court has to assess what might have been reasonably understood by all parties, to decide an implied term exists.

You clearly have a right to reject a proposed tenant, so the question is, was there an implied (=unwritten) understanding that you had to have good reasons, or couldn't reject more than some number of them, or even, had to be reasonable in your rejections? Or is it indeed discretionary, and you have total choice, and if the landlord didn't want it that way he shouldn't have agreed a contract which made it that way?

I would argue, unlike Dale M, that in this area, the law is on balance more likely to be on your side than the landlords.

Let's look at the contract this way:

  • 9.1 tenant may assign subject to landlords consent "such consent not to be unreasonably withheld""
  • 9.2 if agreeable to all parties, tenants may assign (replace one tenant with another), subject to landlords consent "such consent not to be unreasonably withheld"
  • 9.3 Landlord may "reasonably" withhold consent if certain situations exist, including where landlord is "reasonably" of the opinion it would be incompatible.

So the contracting parties clearly understood that in some situations, actions need to be stipulated to be "reasonable" or "not unreasonable", and the terms say in 3 or 4 places on that one section, that some specific party must act "reasonably" or must not act "unreasonably", when making certain decisions.

That clause could easily have been added to the refusal of remaining tenants to accept a new one, or required to be added by any party who felt they needed that protection, but it was not.

Clearly all parties understood that a "must act reasonably" type of clause was needed for some matters. So if some party wanted the same clause on other matters, that would have been easy to ask, and the landlord could always draft it in, or refuse to contract unless so agreed, if it mattered to him.

As a result, and from multiple viewpoints, it's very hard to argue that it was implicitly understood by all parties that this specific right to reject a candidate new tenant needed to be "reasonable", have a reasonable reason, or was limited to 3 candidates (or any specific number), when the contract clearly doesn't say so. Especially when the contract was the landlord or his agents own drafting/choice (assumed, seems likely), and its also his business.

After all, if that term was "clearly understood by all" there, then why wasn't it clearly understood in other places?

Conversely if it was explicitly stated and necessary to say, in other places, then its absence in that place speaks volumes to me, about it not being clearly a common understanding/intent.

Conclusion

So I think you have a strong argument that no such rule was agreed, "sorry".

Don't be a dick, or be rude. Be sympathetic and understanding that this is indeed an issue for the old tenant and landlord and help find a solution if you can and want to - but at the end of the day that's your right, and the contract the landlord agreed.

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  • Thank you for such a detailed answer! Yes, you suspected correctly, this contract was drafted by lawyers on behalf of the landlord.
    – Lorcán
    Feb 4 at 16:58
  • 1
    If he feels they didn't draft it appropriately, and he lost out thereby, he can always sue his lawyers. I give him about a 0.001% chance of success though. But technically that,and "know your business better/learn from your mistakes for.future", are his remedies.
    – Stilez
    Feb 4 at 17:16
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You missed the important point. You can refuse all you want, but then the outgoing tenant cannot leave before the term of the lease.

So either:

  • they continue to pay (and you are most probably jointly liable for the payments if they don't)
  • or you pay their share
  • or you have to find a new tenant that is agreeable to both you and the landlord.

Note that it's the responsibility of the outgoing tenant to find a replacement tenant. The letting agent (or the landlord) has probably done you a favour in trying to find new tenants for you (which has a cost: listing fees, time to deal with them...), and they won't do that eternally if you keep saying no.

Them telling you that you have to accept a new tenant they suggest is a bit of a shortcut. They can't indeed force you to accept them. But they can refuse the early exit of the outgoing tenant if you don't accept the candidates they suggest or don't find one yourself.

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7

I'd like to suggest a frame challenge.

You're asking "Can a landlord change a contract without your consent?" That has several good answers. There is another question you aren't asking, and hasn't been answered, and is very important. It is "What can the landlord do if you do not consent?"

There are a lot of possible answers, but the most relevant is that the Landlord can use information about your behaviour in informing how they work with the existing contract going forward.

For example, if you're joint and severally liable then each of the three of you is responsible for making sure that the rent gets paid. If you two pay your 2/3 of the rent and the leaving party doesn't, it's at the Landlord's discretion who to chase for the gap. They are perfectly entitled to chase the leaving party; they're the ones who most obviously aren't pulling their weight. They are perfectly entitled to chase you; you're the ones still in the house. They are perfectly entitled to cover their bets and chase both. Or, they're perfectly entitled to chase the leaving party for as long as they reckon the leaving party has dumped you in it, and then chase you once they decide that you've had plenty enough chance to get yourself out of it. They're perfectly entitled to decide "Three rejections without explanation" is the point that they chase you. I don't know what your rent is, but bumping your effective share by 50% could get pricy.

None of this has to do with the change of tenancy rules, and it's certainly nothing to do with changing the change of tenancy rules. That's just discretion they'd have from the existing contract.

The implication, then, is that if you persist in saying no, they can't legally force you into a new contract. Just remember that they can enforce your current one.

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  • The power relationship might also be worth mentioning, outside of contract. Being in a contract with a hostile counterparty sucks.
    – Yakk
    Feb 7 at 1:27
4

No,

for the reasons others have stated.

You may also wish to ask the letting agent (or the landlord or his lawyer) to put it in writing that "once three candidates have been nominated by the tenant wishing to leave the agreement, [the remaining tenants] must [sic] accept one of the candidates".

I am not sure what jurisdiction you are in, but letting agents in England are required to be members of either the Property Ombudsman Scheme or the Property Redress Scheme. For a letting agent to give false "advice" to a tenant in order to pressure them to accept a change in a contract (in this case, the replacement of one tenant with another) is - let me put this diplomatically - somewhat frowned upon.

I agree with Stilez that you shouldn't be rude, but you are being pressured by means of false legal advice to accept a change in a contract, and you may - dependent of course on other considerations - wish to express this position as it really is, or at least to know that the possibility of doing so at a later time is in your arsenal.

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    Why on earth would the tenants want to shackle themselves with this additional clause? Feb 4 at 20:53
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    If (and only if) this idea gets followed, then ask for it this way: "please put in writing that the contract requires ..... etc". That's a much stronger wording than "you must", and they will hesitate much more, and be much more exposed. Then, whether they do.or don't, say "no, it doesn't" and refuse anyway. Or alternatively, "thank you for your email. Please identify the clause saying this, as I can't see it". Basically making them put their head in a noose or withdraw the demand.
    – Stilez
    Feb 4 at 20:58
  • Thank you for your answer. It has been quite intimidating getting these emails demanding that we must accept. I wasn't aware that I could potentially raise this with an ombudsman. Thanks again!
    – Lorcán
    Feb 5 at 11:24
  • @AndrewLeach the letting agent can't unilaterally change the contract, the idea here is that if they put an unreasonable claim about what the contract means, or attempt to make an unreasonable change to it; it'll be easier for the regulator to take action. Feb 5 at 18:04
  • @danisfiddling But this answer suggests that the tenants actually ask for that clause. Stilez' clarification/amendment is valuable. Feb 5 at 18:08

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