Parental liability for rent debts of a minor?

[labrat]

thats the names i was looking for just couldnt remember them.

 

would suggest them i dont know much about this

[MrShed]

Cheers raydetinu for the heads up - reading over now, will reply shortly.

[MrShed]

OK this is a bit of a ridiculous landlord quite frankly.

 

OP - first thing first, I think that any attempt to pursue yourself for any money would be completely frivolous and vexatious, and would be thrown out of court.

 

To be honest, the same can probably be said of any claim against your daughter.

 

there are LOADS of issues here, which I will try and address as much as I can.

 

- I am unaware of this "neccessity" thing, but as far as I knew NO-ONE under the age of 18 can agree to a tenancy, as such I fail to see how chasing for rent will ever succeed legally.

- The legal guardian thing is absolute nonsense.

- Although there were disrepair issues, I think we need to forget about them for the purposes of this. Severe as they may have been, they did not allow unilateral termination of tenancy.

- The fact that the deposit clearly hasnt been protected will entitle her to sue for the deposit and 3 x the deposit (if a tenancy can be shown to be established, which it possibly cant due to it being a minor).

- If he is sending "heavies" and contacting, keep a full diary of all such events - this is unacceptable and you could have a claim of harrassment.

- Key point - as labrat mentions, in order to evict the landlord must give a minimum of 2 months notice using a Section 21 formal notice. After this, a court order must be obtained to regain possession. It is quite possible that this situation could be construed as unlawful eviction - a criminal act, with substantial damages being able to be claimed.

 

All in all, my advice would be to write a letter to the landlord advising that he has no agreement whatsoever with you, and that any further correspondance will be monitored and potentially classed as harrassment. If he still feels he has a case against you, advise that he takes it to court.

[blitz]

I have been trying hard to find some text on minors entering into a contract under necessity but failing miserably. Though it could be said that it wasn't a necessity to move into a house on her own, but was made as a free will choice, such as can be proven by her moving back in with you.

 

Just a double check that you are outside of scotland as otherwise the Age of Legal Capacity Bill 2001 would apply (seeing as your a solicitor guessing you most likely know already)

 

If after you have taken Sheds advice he does proceed any further am more then happy to chip in with some good research into necessity as I don't not like knowing things and am happy to help.

[hightail]

Does this help?

 

http://england.shelter.org.uk/__data/assets/pdf_file/0018/48510/30486.pdf

[blitz]

Helps on my search so thanks, if it comes to it will go through the statutes, I don't have the contracts blackstones but will do a search at the law library when I get a chance.

[hightail]

This is a more general explanation

 

Contract Law & Minors: Solicitors law firm in London UK discuss minors

[blitz]

I can't find anything in statutes or case law, I have seen the shelter/law society/solicitors mention this all, I am just one of those people who needs to read it in the act. Thought I don't want to jump ahead when its not needed on this thread and hi-jack it. At the moment I would go with MrSheds advise , if you find the statute or case law chuck me a PM hightail, otherwise I see my break in lectures tomorrow broken up looking into this. (its bugging me way too much... and I am avoiding my own subjects work)

 

As a note this is the act: Minors? Contracts Act 1987 (c. 13)

 

I am either blind, my law english is not with me today or it is a fragment of the act but I don't see a necessity clause.

 

Anyway sorry to sort of hi-jack this part of the thread, read sheds stuff, and if it goes any further then you have loads of people who will be willing to help

[hightail]

Be kind to me - all I've ever done is one very basic GCSE level qualification and the necessaries case quoted involved some student buying clothes. I'm off to search for Nash v ?? That's all I remember for the moment and of course it was long before the 1987 act.

 

I do definitely remember that the burden for proving something a necessary lies with the supplier. The Shelter paper is obviously arguing for letting to minors. If the OPs daughter was still welcome to live at home then it could be argued the accommodation wasn't necessary.

[hightail]

OK - my hall is now covered in the contents of my understairs cupboard and I've found my old course notes

 

Nash v Inman 1908

Student ordered load of fancy waistcoats from a tailor, didn't pay, tailor sued. Student already had enough clothes so the ordered waistcoats were not necessaries. Tailor didn't get his money.

[labrat]

hmm somehow i think it would have been re-visited from more recent law.

 

sometimes this place makes me wish id taken law further than an a-level

[hightail]

hmm somehow i think it would have been re-visited from more recent law.

 

Couldn't agree more - was hoping to spur someone with more knowledge into posting. Contracts are one of the areas where the authors of textbooks never seem to update cases, Taylor v Cauldwell being an obvious example.

[Aequitas]

When it comes to the sale of goods section 3 (2) of the Sale of Goods Act 1979 provides:

 

Where necessaries are sold and delivered to a minor [..]he must pay a reasonable price for them.

 

The Act does not of course cover accommodation. When renting, I think it is probably the case that a minor can repudiate the contract at any time before attaining his majority, but must nevertheless pay rent for any period he has been in occupation. Having a roof over your head is a necessity, though I suppose it can be argued that it is not a necessity unless you were homeless when the contract was made.

 

What is quite clear is that the OP cannot be liable in the absence of having signed a guarantee.

[blitz]

So I don't hijack the thread for the OP, and because I want the opportunity to ramble on my findings on minors in contracts started a thread here: http://www.consumeractiongroup.co.uk/forum/general-knowledge/228438-minors-contract-law-new-post.html

 

Will be following and helping out the OP as much as I can in this thread too

Edited October 26, 2009 by blitz

[JonCris]

When it comes to the sale of goods section 3 (2) of the Sale of Goods Act 1979 provides:

 

Where necessaries are sold and delivered to a minor [..]he must pay a reasonable price for them.

 

The Act does not of course cover accommodation. When renting, I think it is probably the case that a minor can repudiate the contract at any time before attaining his majority, but must nevertheless pay rent for any period he has been in occupation. Having a roof over your head is a necessity, though I suppose it can be argued that it is not a necessity unless you were homeless when the contract was made.

 

What is quite clear is that the OP cannot be liable in the absence of having signed a guarantee.

 

 

I suspect the minor is not liable either in that the landlord should have insisted on a guarantor failing which he should not have let the property to the minor. The landlord had a choice I doubt a necessity can be argued in that a minor should not be homeless in that even if their parents won't the local authority is required by law to house them

[Aequitas]

I suspect the minor is not liable either in that the landlord should have insisted on a guarantor failing which he should not have let the property to the minor. The landlord had a choice I doubt a necessity can be argued in that a minor should not be homeless in that even if their parents won't the local authority is required by law to house them

 

I do not think that it can be said that there is no contract because there was no guarantor. Either a minor has capacity to enter into a particular contract or he has not.

[MrShed]

I do not think that it can be said that there is no contract because there was no guarantor. Either a minor has capacity to enter into a particular contract or he has not.

 

Agreed.

 

The post above by someone with the link to a document by Shelter would seem to clear all these matters up anyway.

[hightail]

Shelter are an organisation dealing with people who need accommodation. An otherwise homeless 16/17 year old would therefore be be entering into a contract which was advantageous to them. A minor can only enter into a contract which is advantageous. I don't believe that it would be considered advantageous for a pregnant 16 year old to leave the family home to reside in (possibly) squalid accommodation with a boyfriend. What matters is what a judge would think. The only recent thing I can find is Wayne Rooney which is hardly similar but certainly comes down heavily favour of a contract being voidable by a minor if it is not decidedly advantageous to them.

Edited October 27, 2009 by hightail
typo

[raydetinu]

I have posted a question on the Shelter forum site about their publication, so we get a response from their standpoint on the legalities of this.

[JonCris]

I have posted a question on the Shelter forum site about their publication, so we get a response from their standpoint on the legalities of this.

 

 

Great Just keep in mind that Shelter are no longer the victim orientated campaigning organization they once were.

 

They are no longer a true charity. Like many former charities they receive their funding direct from government

[lwb96st]

It is trite that a minor cannot hold a tenancy for him or herself and an attempt to do so kicks in the provisions of para 1(1), Sch 1, Trusts of Law and Appointment of Trustees Act 1996 which means that the purported grant of a tenancy operates as a declaration of trust. A cursary glance at Sch 1 makes it clear that the trustee has a duty to act in the best interests of the child beneficiary and protect the trust property by preserving the tenancy.

 

In Eleyarna Alexander-David v Hammersmith & Fulham LBC [2009] EWCA Civ 259 the appellant, who was 16 years old and pregnant, applied to Hammersmith & Fulham for accommodation under Part 7 of the 1996 Act because she was homeless. The authority accepted that it had a duty under s.193(2) of the 1996 Act to secure that accommodation was available for her, and it discharged that duty by entering into an agreement with her which gave her a tenancy of premises. The tenancy could not be an equitable tenancy because the tenancy was granted using the authority's standard terms of tenancy.

 

So what did the Court of Appeal do? It decided that whether it liked it or not, the local authority was trustee. The rather obvious problem is that as trustee it must do its best to preserve the tenancy and protect the trust property by preserving the tenancy (i.e. by not bringing possession proceedings for non payment of rent or nuisance behaviour) as to do so would leave themselves open to a counterlcaim for breach of trust. In any event as trustee the possession claim forms would have to be served on themselves (a little odd on any view).

 

The upshot is that unless the landlord rewrote the tenancy agreement to make it a tenancy in equity (contract for necessaries as you put it) then the landlord was holding the tenancy on trust. He has no claim against the daughter and certainly no claim against her parents. On the contrary, as trustee any claim made against the daughter would be against himself. He should also be warned that his behaviour might be a criminal offence under the Protection from Harassment Act 1997.

[blitz]

I have more case law to study Thanks for the post good read and will be researching even more into this interesting subject (Around my actual course that is)

[lwb96st]

The Hammersmith & Fulham case was concerened with the discharge of the local authority's duties to the homeless but it has a lot to say about granting tenancies to minors: Alexander-David v London Borough of Hammersmith & Fulham [2009] EWCA Civ 259 (01 April 2009)

 

For your reading generally you must remember that English law adopts a paternalistic approach to children. Those under the age of 18, rightly or wrongly, are thought to need protection from exploitation by rogue traders, so the presumption is that all contracts made by minors are unenforceable against them. There are, however, a number of exceptions to this general rule, some of which you have touched on. The Minors' Contracts Act 1987 (MCA) altered the rules applying to minors' contracts, with the aim and effect of improving the position of those who deal with minors. The changes were not extensive, however, and many of the rules that applied before 1987 continue to operate in the minor's favour. The first major exception to the general rule of unenforceability relates to contracts for ‘necessaries’. The reasoning here is that a total rule of unenforceability would act to the minor's disadvantage. If traders knew that any contract with a minor would involve the risk of the minor deciding not to honour it, they would be reluctant to enter into such contracts at all. As a consequence, the minor would have difficulty acquiring the basic requirements of everyday life, such as food and clothing. The concept of necessaries, both goods and services, was explained in some detail in Chapple v Cooper (1844). It means not only things that are absolutely necessary for survival, but those that are required for a reasonable existence. Food and clothing are obviously covered, but medical assistance and education also fall into this category. Once the goods or services are of a kind that can be put in the general category of ‘necessaries’, there is then a further question as to whether they are appropriate to the particular minor. Whether a silk dress can count as a necessary will depend on the minor's normal standard of living. It will also depend on whether the minor is already adequately supplied with goods or services of this kind. A girl with a room full of shoes does not need any more, now matter how necessary she thought it was to buy the shiny new ones.

 

The second major category of enforceable contracts is that of ‘beneficial contracts of service’: in other words, employment contracts. It is recognised that the minor should be able to do a paper round, but if such contracts were void or voidable, he or she might have great difficulty in finding anyone prepared to offer employment.

 

Perhaps the most important provision of the MCA for the person contracting with a minor is s 3. Under the law prior to the MCA, the person who supplied non-necessary goods to a minor ran a great risk. It should be remembered that the contract is unenforceable whether the supplier knows that the other party is a minor or not. Moreover, even if the supplier knows the minor's age, ignorance of the fact that the minor is already adequately supplied with the relevant goods will not prevent the contract being unenforceable. Now, s 3 of the MCA allows a restitutionary remedy. It states that, where a contract is unenforceable against a defendant, or has been repudiated because the defendant is a minor, the court can, where it is ‘just and equitable to do so’, order the defendant to return any property received under the contract, or other property representing it, to the claimant. Thus, non-necessary goods can no longer be retained (such as mobile phones), and the minor cannot be unjustly enriched. If, however, the goods have been consumed or otherwise disposed of without being exchanged for other property, the supplier will have no remedy.

 

The final provision of the MCA that should be noted is s 2. This deals with the situation in which a contractor is aware that the other party is a minor, or ought reaosnably to know (such as a landlord), and so seeks a guarantee from an adult third party. Prior to the MCA, such contracts were thought to be void. Section 2 now makes it clear that they are enforceable against the guarantor.

[raydetinu]

just got this resonse from the Shelter website which confirms the above:

 

'Not sure you will find a simple case, I believe the area of law you need to check on is around 'equitable tenancies' where someone (the landlord by default) holds the tenancy in trust. If I remember correctly recovering possession in these cases requires the landlord to serve themselves with notice - unless someone else is holding the tenancy in trust for the minor.

 

Looks like the LL will have to sue himself???!!!!

[raydetinu]

Hang on a minute, is this is not contrary to the advice in the Shelter document or have I missed something?