Joint and Several Liability – what does it mean?
If there are two or more joint tenants to a Scottish Secure Tenancy Agreement, they will be jointly and severally liable for all of that tenancy’s contractual obligations. What this means for the landlord is that it can hold either one or all of the tenants responsible for any arrears. In effect, the Association, has a choice regarding which of the tenants to pursue. This can often be a practical decision. For example, if you know that one of the tenants is in a better financial position, they might be the one that the landlord focuses on for recovering arrears.
Joint and several liability also means that you do not need to apportion arrears depending on the number of joint tenants. You can carry on pursuing all of the tenants at the same time until all the debt is paid in full.
In summary, you can hold all the tenants responsible for all the arrears.
When Joint Tenants Terminate or Abandon
When a joint tenant terminates their interest in a tenancy or abandons the property, they are liable only for the arrears which accrued until the point of termination/recovery. The remaining tenant(s) will then be liable for any arrears or rental charges which accrue thereafter.
When a joint tenant is no longer party to the tenancy agreement, either due to termination or abandonment, the original tenancy agreement should continue to operate for the remaining tenant(s). A new tenancy agreement should not be offered to the remaining tenant(s).
Offering a new tenancy to the remaining tenant(s) would have the effect of rendering any arrears history redundant. Any arrears which accrued prior to the joint tenant terminating or abandoning would then be classed as former arrears, even for the remaining tenant(s). This means that, if you wish to raise an action for eviction against the remaining tenant(s), any arrears prior to the new tenancy being entered into could not be taken into account.
Therefore, it is important that the original tenancy continues to operate even after a joint tenant is no longer party to that agreement.
This should not cause too many difficulties when pursuing arrears from either the former joint tenant or the remaining tenant(s). The joint tenant will simply be pursued for the arrears balance as at the date of recovery. The current tenant(s) will be pursued for the present balance.
If you would like any advice regarding recovering arrears from joint tenants, please contact a member of our social housing team.