Joint Tenants Action – I have heard that an action against joint tenants is limited to the first four listed on the tenancy agreement. Is this correct – does not seem to square with joint and several liability?
Section 34 of the Trustee Act 1925 says the maximum number of people who can have a legal interest in land is 4.
Therefore, when more than 4 are named, the first four hold the legal interest on trust for themselves and others in equity.
So if there are 6 Students say, who are named as tenants under the tenancy agreement, only the first four are bound by legally enforceable covenants, e.g., to pay rent etc, so as far as the Landlord is concerned, only the first four can be sued for any breach of those covenants.
The fifth and sixth students would have legal liability between themselves and the first four named tenants.
The landlord would have to sue either one or all of the first 4 named tenants and then they would bring in the other 2 tenants.
If the bottom two were the ones failing to pay the rent, the landlord would sue the first four and they would then bring in the other two.
If the two failing payers are actually part of the first four, then they could be sued outright but the other two of the four would be jointly and severally liable in any case!
Therefore, only the first four occupiers can be tenants.
One answer for landlords is to make, by way of a supplemental agreement or as part of the main agreement, the additional occupiers jointly and severally liable for the other’s (the 4 tenant’s) obligations, even though they are not tenants.
Alternatively, where a house is let to, for example, 7 occupants – 4 on one level of the house could be on one joint tenancy, with the other three on a different level of the house on a separate joint tenancy.
The implications for using the s21 possession procedure are that the additional (permitted occupiers, as would be the case with children) cannot be served notices themselves, but their occupation rights would end if the main 4 tenants rights end.
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