Think Twice Before You Sign: The Legal Risks of Joint Tenancies in UK’s Private Rental Market
With rental prices climbing and flatshares becoming the norm across Scotland’s university cities and towns, many tenants—especially students and young professionals—find themselves signing joint tenancy agreements. But did you know that one wrong flatmate could leave you legally stuck in a lease you no longer want, possibly still paying rent for a flat you’ve already left?
Under Scotland’s Private Housing (Tenancies) (Scotland) Act 2016, the rules around Private Residential Tenancies (PRTs) are stricter—and, in some ways, harsher—than many realise, particularly for joint tenants.
Let’s break down what the law says, what it means in real life, and why you must choose your co-tenants very carefully.
The Legal Basics: You Can’t Just Walk Away
The Scottish Government’s own guidance on PRTs makes this clear:
“To end a joint tenancy, all the joint tenants must agree to end the tenancy and sign the notice to leave. One joint tenant cannot terminate a joint tenancy on behalf of all the joint tenants.”
(Private Residential Tenancies: Information for Tenants, 2017)
In short: no one tenant can leave and end the tenancy for everyone. If you move out while others stay behind, you’re still legally responsible—financially and otherwise.
Why Is This the Case?
Under Section 44 of the 2016 Act, tenancies can only end by very specific means. A tenant can end it by serving a valid notice, or a landlord can seek eviction either by notice and agreement, or through a First-tier Tribunal decision.
But crucially, under Section 78(3), when the law refers to “the tenant,” it means all joint tenants—unless otherwise stated. So unless every single tenant agrees and signs the notice, it’s not valid.
Contrast that with landlords: any one of multiple landlords can issue a valid notice to leave (thanks to s.62(2), which deliberately overrides the default rule in s.78(2)).
Bottom line?
Landlords have it easier. Tenants are stuck with each other.
A Common Legal Scenario: One Leaves, Two Stay
Let’s say you’re renting with two friends, and halfway through the lease, you want to move in with your partner. You tell your landlord, pack your things, and stop paying rent.
Legally?
You’re still on the hook—financially liable for the rent and any damages—because your name is still on the lease and your co-tenants didn’t sign a joint notice to terminate. Even if you’ve left the property, the tenancy continues.
What the Common Law Says
The requirement for all co-tenants to act together isn’t new. Legal heavyweights like Rankine, Erskine, and Paton & Cameron have long argued that:
- Co-owners must act jointly to remove tenants
- Co-tenants can end leases only together (except in limited cases like squatters)
Historically, common law treated tenancy rights and responsibilities as indivisible—you’re in it together, for better or worse.
How Does This Affect Landlords?
Ironically, landlords get more flexibility. Any one of several co-landlords can initiate eviction proceedings via the First-tier Tribunal. This breaks with the traditional Scottish rule of unanimity in co-ownership, famously stated by Bell: “the consent of all is required in managing or disposing of jointly owned property.”
This “statutory shortcut” in the 2016 Act was intentional—but it puts tenants at a significant disadvantage.
Example: Students Trapped by the Law
Consider this real-world scenario:
X, Y, and Z are students renting a flat. Y and Z are graduating and want to move. X has another year and wants to stay. Y and Z can't legally end the lease without X’s agreement—and vice versa. If they leave, they’re still liable for rent. If X wants to leave later and can't find them to co-sign the notice? She’s stuck too.
This is not just hypothetical. Situations like this arise frequently, especially in student lets. And if any tenants default on rent? The landlord can pursue any or all of them for the full arrears.
What About the Social Housing Sector?
Interestingly, social housing tenants have had more flexibility—since 2001.
Under s.12 of the Housing (Scotland) Act 2001, a joint tenant in a Scottish Secure Tenancy can end their own share of the lease by giving 4 weeks' notice, without needing co-tenants to agree.
This was a direct result of pressure from Shelter Scotland, following years of hardship cases where separating partners were left legally tied to tenancies they’d long since left.
But that protection doesn’t exist in the private rental sector. So if you're in a PRT with friends or a partner, you're in the same rigid legal framework that has existed under common law for over a century.
Can I Assign My Share or Sublet?
Yes—but only if your landlord agrees.
If your co-tenants can’t or won’t end the lease with you, your only route out may be to assign your interest to someone else (essentially replacing yourself on the lease). This must be approved by the landlord, who can reasonably refuse.
Subletting is also tricky and often forbidden under tenancy agreements unless explicitly allowed.
The Legal Catch-22
Let’s say your flatmates do a runner. You’re still in the flat, covering rent alone. Months pass, and you want out—but can’t serve notice because they’ve vanished.
Your choices?
- Hire a solicitor and seek a novation (a new lease in your name only)
- Get the landlord to issue a notice to leave instead
- Try to track your co-tenants down
- Or stay, keep paying, and pray they don’t rack up debts you’ll be liable for
It’s not pretty.
What Should You Do Before Signing a Joint Tenancy?
1. Choose your co-tenants like you’d choose a business partner.
You’re entering a legally binding agreement. Don’t do it lightly.
2. Agree what happens if someone wants to leave.
Write it down. Consider a cohabitation or flatmate agreement, especially if money is being pooled unequally.
3. Speak to a solicitor before signing.
A short legal consultation could save you months of stress later on.
Conclusion: The Law Is the Law—But Know Your Options
The Private Housing (Tenancies) (Scotland) Act 2016 is clear. Joint tenants are legally joined at the hip unless all agree to leave together. The only legal escape hatch—assigning your interest or getting the landlord to act—requires cooperation or luck.
So, if you're signing a joint tenancy in Scotland, remember: choose your co-tenants very, very carefully.
Ready to Protect Your Share?
If you're separating from a co-owner or ex-partner, don’t delay. Severing the joint tenancy is the first step toward protecting your share and reaching a fair resolution.
Email us at thelegalteam@parachutelaw.co.uk
Call Parachute Law today on 0207 183 4547
Call us today or book a fixed-fee consultation to get started.
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