Separating does not automatically end a joint tenancy agreement. Who may stay and who has to pay the landlord depends on the form of tenancy and the arrangements that have been made. For a contractual tenant, simply moving out or deregistering with the municipality is usually not a complete settlement.
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An arrangement between former partners that one person pays the rent may be clear between the two of you. Even so, the landlord may still have claims against both contracting parties. You should therefore arrange both the use of the home and your position towards the landlord.
Which form of tenancy do you have
If both names appear on the contract as tenants, this is generally a case of contractual joint tenancy. In addition, a spouse or registered partner may be a statutory co-tenant if the home is their principal residence. For unmarried cohabitants without co-tenancy, the starting position is different.
Het Juridisch Loket (the Dutch legal advice desk) explains the difference in co-tenancy. So do not start with the question of who has paid the rent for the longest time, but with the contract and the legal position of both occupants.
Who may stay in the home after the break-up
Try to reach a written agreement on who stays, from what date, and how the other occupant will be given access to collect their belongings. If you disagree, a court decision may be needed. Which procedure is appropriate depends on whether there is a marriage, a registered partnership or a contractual joint tenancy.
In the assessment, the interests of both occupants may play a role, such as children, the possibilities of finding other accommodation and financial capacity. There is no general rule that the person with the highest income or the longest registration on a housing list always wins.
Who pays the rent after one of you leaves
In a joint contractual tenancy, joint and several liability may mean that the landlord can collect the full rent from each of the tenants. The fact that one person no longer actually lives there does not in itself remove this contractual position.
You should therefore ask for a clear arrangement under which one tenant continues the tenancy and the other is released from future obligations. Depending on the route chosen, a court decision may also affect the tenancy relationship. Have those consequences assessed explicitly and record the effective date.
Arrangements between yourselves and the landlord
An internal arrangement about payment, the deposit or damage does not automatically bind the landlord. Conversely, changing the name on the tenancy does not always settle all old debts between former partners. Set out separately in writing what happens to existing arrears, service charges for the current year and any deposit paid by one person.
Also make arrangements about keys and correspondence. Who will receive a later final statement? How will documents be forwarded? It is precisely these small practical points that can prevent a fresh dispute months after one of you has moved out.
What if one person terminates everything
Do not assume that a single signature will validly end the entire joint tenancy in every situation. The content of the contract, the position of the other tenant and the chosen termination route all matter. Seek advice before you send a notice of termination if the other person wants to stay.
A landlord may also propose concluding an entirely new contract. In that case, check whether the rent, the term or the guarantees change. A relationship breakdown is no reason to give up accrued tenancy protection without having it assessed.
The contract and your type of relationship determine the starting position
Look up the original agreement and all later additions. Is a person named as a tenant, only as an occupant or solely as a contact person? A signature under house rules does not necessarily mean the same as becoming a party to the tenancy agreement. Also check whether statutory co-tenancy through marriage or registered partnership and principal residence applies.
Where unmarried partners live together without a joint contractual tenancy, there may be arrangements between the partners that do not simply bind the landlord. Paying part of the rent does not automatically make someone a contractual tenant. So first establish the legal basis before negotiating about who gives up “half of the contract”. The different forms of tenancy have different consequences when someone moves out.
Use of the home and liability are two separate questions
Who stays in the home for the time being is not necessarily the same question as who remains liable to pay the landlord. A temporary arrangement that one partner sleeps elsewhere can bring some calm, but it does not automatically settle the tenancy relationship. Write down whether the arrangement concerns only temporary use or is also intended to end someone’s position permanently.
Make sure that collecting personal belongings is not interpreted as a full settlement while nothing has yet been decided about the contract. Record access, keys and the duration of the interim arrangement. Where there is a lack of safety or a threat, a different, urgent approach may be needed. A dispute about the right to live in the home must not be settled by unilaterally locking someone out.
Understanding joint and several liability in practice
If both tenants are jointly and severally liable, the landlord can demand the full rent owed from each of them. An internal split of fifty per cent is then not an automatic limitation towards the landlord. Anyone who pays more than was agreed internally may have a claim for reimbursement against the other, but that is a separate relationship.
An example: two contractual tenants agree that the tenant who stays will pay the monthly rent of € 1,000. If that payment is not made and the tenant who has left is still jointly and severally liable, the landlord may also be able to pursue that person. This fictitious calculation shows why an arrangement between former partners alone may not provide sufficient certainty. Also settle your position towards the landlord.
A continuation agreement with the landlord
Ask for written confirmation of who continues the tenancy from what date and which future obligations of the departing tenant come to an end. Check whether the existing contract is being continued or whether a new agreement with different terms is being concluded. That choice may affect the rent, the term and the guarantees.
Make explicit what happens to old arrears and service charges that have not yet been settled. Release from future obligations does not automatically mean that all old debts disappear. Conversely, an administrative change of name should not unintentionally lead to a new deposit payment when a deposit has already been paid. Ask the landlord to incorporate the existing records into the agreement.
If you cannot agree on who stays
The appropriate court route depends on the type of relationship and the kind of tenancy. In a marriage or registered partnership, different procedures may apply than in a contractual joint tenancy between unmarried partners. So first have it determined which decision is needed and what consequences it will have for the relationship with the landlord.
Set out the relevant interests in concrete terms: the care of children, ties with the neighbourhood, the possibilities of finding other accommodation and whether the home is affordable. No single criterion is decisive in all cases. An overview of facts and documents helps an adviser to substantiate the balancing of interests. The explanation by Het Juridisch Loket on co-tenancy sets out the basic differences.
Settling the deposit and joint purchases
If the tenancy continues, the landlord will not always repay the deposit straight away. Partners may agree between themselves that the one who stays buys out the other’s share of that deposit, but record which claims are thereby transferred or settled. Check how much deposit was actually paid and by whom.
Keep furniture, fixtures added to the home and tenancy guarantees separate. A floor taken over from a previous tenant, for example, may raise a question of ownership between the partners and at the same time be relevant when the home is later handed back. Draw up an inventory with arrangements about what stays and what is taken. A clear interim position prevents a departure from being followed months later by an unclear conflict about the same belongings.
Service charges and old debts after moving out
An annual service charge statement may only arrive long after one tenant has moved elsewhere. Agree who will receive the statement, which supporting documents will be shared and how amounts will be divided between you. The period of occupation may be relevant, but it is not always the only starting point; contractual liability towards the landlord must be considered separately.
Keep a record of meter readings at the time of departure if they are relevant in practice. Also record which outstanding amounts have already been paid and by whom. Give payments between yourselves a clear description. An arrangement on the future use of the home does not have to resolve all old financial issues at the same time, but in that case state explicitly which parts remain open.
Example of a complete departure agreement
An arrangement may provide that one tenant stays from an agreed date, the other collects their belongings at a specific time and the landlord confirms in writing which future obligations come to an end. In addition, existing debt, the deposit and later service charges are divided separately. This is an example of topics to cover, not a standard contract that works in every situation.
Before signing, check whether all necessary parties are cooperating and whether a court decision is still required. Set out any conditions clearly in writing, for example when the arrangement takes effect. An arrangement that only works once the landlord has consented must not be treated as though that consent has already been given. If there are payment problems, rent arrears on a home also need attention at the same time.
Frequently asked questions about separating and a rented home
Am I released from the tenancy if I deregister
Not automatically in a contractual joint tenancy. You must also settle your legal position towards the landlord.
May my ex change the locks
That may infringe the other occupant’s rights of use. First have it established who is entitled to access and which arrangements or decisions apply.
Will I get my half of the deposit back straight away
Not automatically. The landlord often holds the deposit for as long as the tenancy continues. A settlement between yourselves must be agreed separately.
Can the landlord hold me liable for an old debt
That is possible, depending on liability and the arrangement agreed. Ask for explicit arrangements covering both existing and future obligations.
Does the person who pays the rent automatically get the tenancy
No. Payment may be relevant evidence, but the agreement and any statutory co-tenancy position form the basis. Moreover, the question of who may stay may require a separate balancing of interests. So do not rely solely on the bank account from which the rent is paid.
Can I just have my own name removed from the contract
In a joint tenancy this is not always a unilateral administrative step. The agreement, the cooperation of those involved and any possible court route must be considered. Ask for clear confirmation of the effective date and the consequences for future and existing obligations.
Does our cohabitation agreement also bind the landlord
A cohabitation agreement may contain arrangements between the partners, but it does not automatically make the landlord a party to it. Make sure the arrangements on payment and use are aligned with the tenancy agreement. Changing your position towards the landlord may require an additional agreement or decision.
Must the departing tenant contribute to later damage
That depends on liability, how the damage arose and the departure arrangement that was made. Record the condition of the home at the time of departure and make arrangements about existing defects. A later claim by the landlord and how it is divided between you are not always the same question.
Help with a jointly rented home
Have your contract and the solution you want assessed by Arslan Advocaten. If there are payment problems, also read rent arrears on a home.
