views on whose tenancy this is ?

[emma8485]

Hi need some advice for my partner - sorry if long winded! My partner took on an AST starting Feb 2008, his partner wouldnt pass a credit check so its a sole tenancy. It became periodic after 6 months, and then in Nov 2009 he moved out when their relationship broke down. The letting agent allowed her to stay there cliaming Housing Beneft. My partner paid the rent and she paid him back. Moving on to the summer, and he was advised that this was fraud, and he should be concerned about the state of the property as the deposit is his. He served notice on the letting agent to end the tenancy, however then was told by his ex that actually she had been to Homeless Persons Unit, and to Housing Aid, and they all agreed that the landlord had surrendered the tenancy with my partner by operation of law - this is because they issued a letter which said the following: "To whom it may concern, we are aware that Mr X has left the property and no longer resides there. His ex partner Miss X remains in the property as does their child, and the rent due each month is £**" Homeless Persons unit have told her that she has an implied tenancy, as at the point of writing this letter the agent revoked my partners tenancy rights as the letter also gives her the right to exclude him from the property, thereby acting in a way that isnt consistent with a tenant? The letting agent however, despite knowing this as he wrote to them last week, served him with a S.21 last week, and says they will take him to court for possession as they havent given her a tenancy and we dont know whose right ?

[mariner51]

For Info, previously debated at length on LandlordZone forum

here: http://www.landlordzone.co.uk/forums/showthread.php?40369-Question-about-ending-an-AST-where-the-person-isnt-the-tenant

[rebel11]

http://www.communities.gov.uk/documents/housing/pdf/138289.pdf

[danielr]

it's not at all legal advice, but it might be worth considering, or might prompt a response from someone else as to the legalities:

 

You know how when you're at work, they sometimes change your responsibilities, say you get a promotion, but no new contract to sign.

and you know how even if they do give you a contract to sign, but you don't bother signing it, but do work in your new job.

and then a few years later you can't just turn around and say, "nah, sorry, I'm just the cleaner, look at my contract!" because the fact that you didn't sign the contract doesn't matter, enough time has passed with those terms on the table that you're deemed to have accepted the contract...

 

it sounds kind of like the landlord and or letting agent have apparently know for nearly two years that your partner doesn't live at the house, they've happily communicated with her (the ex), and with the housing benefit people on her behalf.

 

I think that they've happily accepted her as the tenant.

and it's gone on so long that they must have accepted that she is the tenant now.

 

 

That aside, if what Marnier and Snorkerz have said on the other thread that they can't possibly evict her, then it might be an idea for you (if you're on good terms with the landlord), to suggest that it'd be easier and cheaper to sign a six month contract with her now. (save all court costs and hassles for everyone.)

Release you from your obligations, treat the deposit as her new deposit. and if he finds that she's not a good tenant then he will find himself in a legally more secure, and more able position to evict her after a six month tenancy in her own name has ended.

 

Giving up the deposit may sound like a terrible thing to do. but if you're sure that you've pretty much lost it anyway, what difference does it make, if you just call it her deposit, and she can lose it, or if she moves out leaving the house a mess that you can't clean/fix and you lose the deposit anyway.

[raydetinu]

They can certainly issue a S21 notice at any time and dont have to give a reason.

Suggest you negotiate with LL to start new AST if possible.

Also strongly suggest you contact Shelter fo advice, they are very good at this sort of thing.

[speedfreek]

It became periodic after 6 months, and then in Nov 2009 he moved out when their relationship broke down. The letting agent allowed her to stay there cliaming Housing Beneft. My partner paid the rent and she paid him back. Moving on to the summer, and he was advised that this was fraud, and he should be concerned about the state of the property

 

In order for HB to be paid there has to be a valid contract in place. Where no signed and valid Tenancy Agreement is in place the landlord/agent of must provide a signed declaration (usually the council send out a form to fill in)

 

This looks like an old form but the same information is requested. See page 21 section 23 Landlord’s tenancy declaration is the bit you're after.

 

http://www.torridge.gov.uk/CHttpHandler.ashx?id=7988&p=0

 

Depends on what was on that declaration really and if OH was named or see bellow

 

If Landlord or Agent signed that form listing claimant (OH ex-partner) as sole occupier then as indicated in the LLzone thread the original contract is null and void and was replaced by that declaration which is the position the Council have taken.

 

If OH signed it saying he was the landlord then he would be subletting and the although he might be in breach of the original terms of the tenancy agreement it still would stand.

 

This is something for the legal eagles in this thread to debate as I haven't a clue I just know how HB/LHA works in practice and the Council declaration was not included in the ll-zone thread.

 

As for Fraud as long as all monies paid were forwarded directly to the Landlord and there was no financial gain then I don't see it. Councils work on probabilities so the real issue would be being able to prove; that although a financial agreement was in place to forward the money they were not living there and could prove they were living somewhere else.

Edited December 21, 2011 by speedfreek

[emma8485]

HB have confirmed they accepted the letter that the letting agent provided which went along the lines as detailed above, and the original tenancy agreement which was in my partners sole name - allegedly they believed the letter from the letting agent to be a "surrender" of the previous tenancy rights, and a type of assignment of the agreement to her. Someone more senior in HB is due to call us back tomorrow. As it stands the letting agent remains firm that my partner is the tenant and has stated openly today that if HB have got it wrong then its not their fault - they havent assigend the tenancy to her, they just gave her a rent confirmation. Incidentally they take repair requests from her, and when the gas servicing has been done annually its her they have arranged it with and issued the certificate to. Is that relevant ?

[danielr]

They can certainly issue a S21 notice at any time and dont have to give a reason.

Suggest you negotiate with LL to start new AST if possible.

how does that work with the house being sublet though?

and there being no written tenancy agreements in place, even assuming that the deposit was transfer to the new tenant, it's not registered in her name.

I mean, if the landlord issues an eviction notice Emmas boyfreind doesn't even live there. he can't be evicted if he doesn't live there?

and Emmas boyfriend can't evict his Ex because there is no tenancy agreement, no protected deposit...?

 

I think starting a new AST is going to be the easiest way really. but how do you convince a landlord to start a new AST when it's clear that they want the tenant out of the house anyway?

 

In order for HB to be paid there has to be a valid contract in place. Where no signed and valid Tenancy Agreement is in place the landlord/agent of must provide a signed declaration (usually the council send out a form to fill in)

If Landlord or Agent signed that form listing claimant (OH ex-partner) as sole occupier then as indicated in the LLzone thread the original contract is null and void and was replaced by that declaration which is the position the Council have taken.

that's what I understood.

for the housing benefit to be paid, it had to be paid to a tenant, so the landlord or letting agent, MUST have signed some paperwork somewhere saying that the ex was the tenant. if the HB is paid in full, it also surely must be that they are listed as the only tenant? as Emmas boyfriend is working, so if he were still living there, or if his name/income were anywhere near the HB forms it wouldn't be being paid?

 

Clearly they (letting agent, or Landlord) didn't either not read the documents, or lie on the documents (cause that'd be wrong, and if you were to ask them if they either didn't read them or falsified the documents then they'd tell you that they knew exactly what they were signing -they'd be in trouble with the council if they didn't!), so they must have agreed to make the Ex the tenant.

 

it stands the letting agent remains firm that my partner is the tenant and has stated openly today that if HB have got it wrong then its not their fault - they havent assigend the tenancy to her, they just gave her a rent confirmation.

The forms are pretty explicit, I mean they ask for tenant names, not names of people who may be living there.

I don't think that there is anyway that the letting agent, (and possibly the landlord) didn't know what was going on, and didn't agree to what was going on.

 

I think that your ex surrendered his tenancy agreement, the letting agent have implicitly accepted that, and they've accepted his ex is the tenant, and even declared as such to the council.

 

look at the document liked by rebel 11 earlier.

section 3.6, does the tenancy agreement have to be in writing?. -short answer: No

 

So they can't even claim that the ex isn't the tenant because there is no written tenancy agreement. -because there doesn't have to be a written agreement.

 

Tell them that you don't care what they do. they can evict the ex. but that they must do it in her name, not your boyfriends as she is the tenant, not him. -and must pursue her for any costs

[mariner51]

"Emmas boyfreind doesn't even live there. he can't be evicted if he doesn't live there?"

 

Yes he can. IMV, eviction means legal cessation of Tenancy, Bailiffs only enforce the Order by physical removal of occupants .

 

LA has signed AST naming E's partner as sole? tenant. Ts do not have to be living in property, many are not. Emma's boyfriend is still paying full rent to LA

LL seeks repo order under s21 against named T, when granted Bailiffs will remove any and all persons occupying property on eviction day. If the resident ex wants to challenge, that would require a further Court hearing if not raised at s21 hearing.

 

I fear this situation will require a Judge to decide whether T has been re-assigned

 

As for HB (LHA) the claimant does not have to be named on the AST. The AST just provides proof of address and rent payable

From DirectGov HB website-

"If you live with a partner or civil partner only one of you can get Housing Benefit"

Edited December 22, 2011 by mariner51

[danielr]

ok. I was going on the information posted in the thread that you linked earlier in this thread:

 

I don't believe he can because the landlord is right, it is the tenants responsibility to return a vacant property, and partner won't be doing so.

 

What might be worth a go is advising the landlord that it is no longer an AST. In reality that makes no difference to your partners ability to end the contract, but it may give the landlord a little jolt to discover he can't use section 21 to evict his tenant (your partner).

http://www.landlordzone.co.uk/forums/showthread.php?40369-Question-about-ending-an-AST-where-the-person-isnt-the-tenant/page2

post 18 and post 20

 

 

Originally Posted by 1988 Housing Act Section 1(1)

A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as— .

(a)the tenant or, as the case may be, each of the joint tenants is an individual; and .

(b)the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home

that's the quote in post 20

in order to evict the tenant then they have to occupy the dwelling.

according to the estate agents there is only 1 tenant. (emmas boyfriend)

and according to Emma, he doesn't live there. (so there are no tenants in the house?)

 

the only people living there is Emmas boyfriends ex, her new partner and a child. and according to the estate agents, none of them are tenants.

so they can't be evicted by provisions in the assured tenancy agreement (S21), because they aren't covered by this. (if they had a tenancy agreement then they'd be tenants?) but since they aren't tenants, they surely can't have a tenancy agreement?

 

the only way that they could be evicted by provisions of the tenancy act is if the landlord or letting agent admit that they are tenants.

 

and once the landlord or letting agent have admitted that they are tenants, (and the sole tenants) then that's what emma wants anyway.

 

for them to recognise that her boyfriend is not a tenant there, the only tenant is the boyfriends ex, and they should deal with her, leaving him out of it.

 

 

As for HB (LHA) the claimant does not have to be named on the AST. The AST just provides proof of address and rent payable

From DirectGov HB website-

"If you live with a partner or civil partner only one of you can get Housing Benefit"

I understand that...

and that brings us all the way round and back to the question.

how do you get HB without proving that you need to pay rent?

how do you need to pay rent without being a tenant?

 

the only answer is that she is a tenant, and the letting agent recognised this when they signed the forms.

 

 

 

which is why I said in the first post.

Go to the letting agent and landlord, tell them just how sticky this situation is. that in all likely hood only a judge can decide who the actual tenant is. (make it clear that a large part of that confusion rests on the letting agents dealings, they knew that she was the only resident, they only deal with her, they signed her housing benefit application)

 

and that an easier way for all that would save a lot of time/costs/arguing would be to change the paperwork into the boyfriends Ex's name releasing Emmas boyfriend from the situation entierly

 

then it's the ex's flat and the ex's problem.

 

if it's a new tenancy then they'll have to wait six months before evicting her, if everyone is agreeable that the tenancy changes names and continues to be the same periodic tenancy, then they just issue s21 when the people actually living there are recognised as tenants.

[speedfreek]

As for HB (LHA) the claimant does not have to be named on the AST. The AST just provides proof of address and rent payable

From DirectGov HB website-

"If you live with a partner or civil partner only one of you can get Housing Benefit"

 

That's administrative and all parties have to be named/declared before payment is commenced.

 

Even if you are a sole occupier where the AST has lapsed to a periodic one the same form has to be filled in and signed by the landlord or agent of.

 

So the question is what was on that form?

[raydetinu]

If the occupier is not on the agreement then they have no rights at all IMO.

the LL can then go straight to court for eviction? The judge will then have to decide what will happen, but unlikely to evict straight away and would probably grant a one or two month stay so they can find somewhere else.

Again I suggest you contact shelter for more advice.

[danielr]

I disagree. There is no provision that there has to be a written agreement at all (which is why the ex isn't on the agreement)

 

In all other ways the ex is the tenant and has been treated as such by the estate agents and landlord.

[emma8485]

Thanks everyone for the responses, we saw a solicitor last friday. He advised us that the following applies:He could claim surrender by operation of law based on the Letting agents actions. We now have a photocopy of the HB form (his ex actually kept it just in case!) It asks for the landlord details, and she has entered the letting agents details and the landlord details from the original AST agreement. The lettign agent didnt sign the rent details form they instead gave her the letter I referred to in my earlier posts, which confirms my partner moved out, she stayed and what the rent was. HB have since made two calls to them to check details when her situation changed, one of which was in October this year, and again they confirmed the rent this time by a fax. The letting agent is arguing that because he continued to pay rent to them, its not a surrender, but the solicitor has wrote to them for us to say they are ill advised if they feel like going to court on the S.21 they have served on him, as he feels a judge would say that because the landlord has treated her as a tenant, and arranged all repairs and gas servicing etc with her, that actually she is the tenant. And it now appears the deposit wasnt protected either, so we have another battle now to get that back! Merry Xmas !

[danielr]

And it now appears the deposit wasnt protected either, so we have another battle now to get that back! Merry Xmas !

good news and bad news...

 

Good news is, if you were still the tenant you probably could sue for the deposit and the 3x penalty for non-protection, it's only failing for so many people now as when you move out you stop being the tenant. apparantly it still might succeed if you were still the tenant. -the idea is that for it to succeed you'd have to start proceedings when you were the tenant.

 

Bad news is that you're arguing black and blue that you're not the tenant! so you don't want to start an argument that you are the tenant!

AND if you were taken to court the landlord could just protect the deposit before it got to court and they might still be OK (for them).

 

But at the end of the day, that money is still yours, if the landlord were to refuse to give it back either to your partner, or his ex, (without a good cause for repair of dilapidations) you could take him to court to get it back...

 

I guess the question is how much the deposit is, and how much you really want it, how much you want to fight for it etc... (I'm not asking, I'm saying you should ask yourself those questions!)

[emma8485]

To be honest if we can just walk away, Ill replace the money myself at this point ! Too much of a flaming headache for us !

[raydetinu]

no point in sueing for the three times, that does not work anymore.

However if deposit is not protected, then any S21 notice is not valid and you can ignore it.

Please contact shelter, there advise would ahve been free and they have solicitors and would go to court if it goes that far.

Again they cannot go to court to evivt you if the deposit is not protected, but they can do that at any time before agreement ends.