My brother is trying to force me into giving him a tenancy – Help!

by Readers Question

11:20 AM, 7th December 2014
About 4 years ago

My brother is trying to force me into giving him a tenancy – Help!

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My brother is trying to force me into giving him a tenancy – Help!

I am not actually a landlord, but I own my mother’s house. She is 85 years old, and my brother and his wife moved in a year ago to care for her. There is no formal agreement, or tenancy of any kind. My brother is trying to force me into giving him a tenancy

I offered my brother and his wife a year rent-free as they were in financial difficulties, and about to be evicted for rent arrears to a housing association. I was due to give them the benefit of an AST, but with a token rent, from October 2014. When I reminded him of the agreement, he insisted that I promised never to charge him rent, in “payment” for care duties, and this caused a rift within the family by saying untrue things about me to my mother, frightening her.

They have now formed a unit, and are urging the family to take sides. My brother has set up a standing order to me for £100 (“rent”) a month. He believes that this gives him the rights I promised him before the split, quoting a Facebook set of messages in which I made the offer, as a legally binding agreement. I have written to him twice, and returned cheques for the amount, asking him to cancel the standing order. He refuses. The bank advise me that this cannot be stopped by them, and suggested I involve the Police. I would rather not do this, for obvious reasons.

My solicitor tells me, in an informal chat, that they are “licencees” only, as I own the house outright, and have never charged rent. My brother says my earlier offer of tenancy is binding, and gives him “rights”.

I do not wish to evict him while my mother is alive, but wish to sell the house when she dies. I have not told him of this, but I think he suspects it.

My brother is 52, his wife is 53. He is in poor health, and has not worked for 25 years (by his choice), so has no entitlements to benefits. His wife works 15 hours a week, but is in poor health too. He has a history of rent arrears, so I think they would find it difficult to get alternative accommodation, and I feel that this is the reason he is demanding “rights” from me, as if evicted under an AST he believes he would be eligible for council accommodation. I do not think he would qualify, and fear he might then be entitled to remain in the house.

I am not sure what the legal position is with regard to the promises of a tenancy I made before we fell out.

Help!!!

Thanks in advance for any suggestions

Regards

Catherine D



Comments

Sally T

12:00 PM, 7th December 2014
About 4 years ago

Looking at this from both sides I would agree to the AST and make sure I have a good independent witness present when signing. This would allow you and your mother to enjoy her remaining years without the stress of it all. At some point in the future when she's no longer at the property I would employ a company to evict them. A section 21 needs no reason for possession and a court has to grant it even if they have no where to go.
You could use it to protect your rights as much as theirs. I'm no legal eagle so other people may come up with better solutions, either way, I wish you luck !

Catherine D'Agneau

17:04 PM, 7th December 2014
About 4 years ago

Reply to the comment left by "Sally T" at "07/12/2014 - 12:00":

Thank you Sally. Your suggestion makes perfect sense as far as protection goes. I am not sure I want to become landlord to them at this moment, the house is over 200 miles away from where I live, and my responsibilities as landlord would require that I visit the house from time to time. Their hostility towards me makes this an unpleasant thought! My mother refuses to speak to me at all, and my brother has taken to sending me vituperative e-mails! I'm not sure I would get any kind of co-operation right now, I may have to let them cool off and hope they see some reason. It is not a matter of money, so I don't mind them all living there rent-free for the rest of my mother's life. If my legal position really is as I have been told, and they are there with my permission only, I would have no need for an eviction process, I can just ask them to leave, and they could not refuse. I am an OAP, and cannot drive as I am partially-sighted, so I think that becoming a landlord is not for me, all things considered! I should really have researched all this before I jumped into it, isn't hindsight a wonderful thing? Families, eh?

Jessie Jones

18:40 PM, 7th December 2014
About 4 years ago

Catherine,
Without looking at the exact conversation you had on Facebook, it is possible that what you have said on there amounts to a 'contract' between you and your brother, and he could use that to cause all sorts of legal difficulties for you.
If you move him onto an AST, it will replace the grey area in which you currently sit with an established formal legal position which will be much easier to deal with.
I don't know whether the receiving of rent change your legal position from being simply a 'home owner' to that of 'landlord' but you will certainly now have responsibilities to have a gas safety certificate, ensure that the electrics are safe and that you have informed the tax man, whether you are making a profit or not. I hope that I am not adding to your stress, but £100 per month will not be enough if the house needs a new boiler and a re-wire.

Mark Alexander

18:47 PM, 7th December 2014
About 4 years ago

I concur with all. Moments thus far.
.

All BankersAreBarstewards Smith

8:41 AM, 8th December 2014
About 4 years ago

Hi Catherine .. what a muddle. I have been a landlord for a very long time and would never let to family !! however.. you are in a difficult place.

My suggestions would be to find a local solicitor who does a "half hour free" consultation and explain your situation.

If the lawyer suggests that you do offer a tenancy agreement, then employ a local letting agent to do that for you - the agent take away most the stress of being a landlord - the agent will know what to do as long as they are a member of a good professional body.

When the tenancy agreement is drawn up - get the agent to charge a market rent.... if your family want to be tenants let them pay a fair rent...... You will then have funds to pay for the landlord expenses which you will incur - BTL insurance, gas safety certificate, EPC certificate etc

If your brother and is wife get into rent arrears, then you will have ample evidence to evict them lawfully later on..... You are not responsible for their lack of good health nor their unemployment - they are trying to emotionally blackmail you...

Which part of the country is the property in ?

best of luck

Catherine D'Agneau

11:15 AM, 8th December 2014
About 4 years ago

Reply to the comment left by "All BankersAreBarstewards Smith" at "08/12/2014 - 08:41":

Thanks to all for the advice. The idea of using a letting agency to handle a tenancy agreement is a good one. The market rent on the property is around £535 a month. The property is in Liverpool, on a main arterial road near the M6. It is a 3-bedroomed house with two receptions rooms, a gated front garden with paved area for parking, and a fair sized rear garden with shed and gated access from the front. I have considered the letting agent route, but I felt that no agent would take my brother on as he has nothing to recommend him! My mother has a reasonable income to live on, and some savings, so the burden of paying rent would likely fall to her. Their combined income would not cover the market rent in any case. I do not wish to upset my mother further, in view of her age, as the original arrangement suited us all completely. It is the arrival of my freeloading brother and his wife which changed things. Emotional blackmail indeed. My mother is frightened of living alone, (she calls my brother and his wife her "24/7 carers", although she is not in need of care as such), and I am sure will do anything to ensure this does not happen, so she is taking his "side", understandably. I think I have most likely painted myself into a corner here. I have messaged our family solicitor with the details today, and am awaiting his advice. Thanks once again, this is helping to straighten things out for me in this dreadful situation!

All BankersAreBarstewards Smith

11:30 AM, 8th December 2014
About 4 years ago

if they are her 24/7 carers - then they should claim carers allowance.... that will help them pay the rent !!

Even setting the rent at half the current market value would give you some cash to pay for the landlords expenses.

Are they paying all the bills between them ?

If they are on benefits - either of them - talk to CAB about them being able to claim Housing Benefit once they are on the tenancy agreement (although sometimes renting between family member can be seen as a 'contrived tenancy and the council could say no... but its worth asking the question)

Mandy Thomson

15:22 PM, 8th December 2014
About 4 years ago

There are a number of elements in common here with Mike's situation earlier in the year (except that Mike was desperate for the tenants/licensees/guests to move out) http://www.property118.com/benevolence-backfired-please-help/67570/#comments

However, what strikes me as the most pertinent question is whether the "landlord" is being paid rent or mesne profit - which would legally determine whether the occupiers are tenants or simply licensees (such as someone renting a holiday let short term). As we know, in law, if rent is being accepted, this can create a tenancy (could this be what the OP's brother is referring to on Facebook?). From a remark made by Romain to Mike's post, I believe mesne profits are considered to be no more than £1000 pa, but I can't find a specified amount as such, but I did find this link here about accepting rent as mesne profiit https://www.commercialtrust.co.uk/btl/landlord-advice/tenant-eviction/mesne-profits/. It advises the landlord to make it clear in writing to such an occupier that money is being accepted as mesne profit or occupation charges only, NOT rent, and therefore no tenancy exists.

If Catherine can keep her brother and sister in law as licensees, rather than tenants, she will have an easier time claiming back her property when the time comes. This is also fairer on the occupiers, as that way they know where they stand, and should be forewarned to expect to find somewhere else to live - the council might be more sympathetic too, as they won't be as secure in the property as full tenants. However, I have a horrible suspicion that just like Mike's "friends", they will have to be forced out - whatever their occupier status!

ABABS makes a good point about them claiming carer's allowance - however, Catherine's mother would have to give a very good account of what they actually do for her, that she can't do for herself - simply doing a bit of housework, shopping and cooking a couple of meals won't cut it - it needs to amount to a full time job (35 hours a week at least) for someone who is unable to do those things themselves.

Catherine D'Agneau

17:32 PM, 8th December 2014
About 4 years ago

Thank you, ABAB (loving your title!). Neither my brother nor his wife are receiving benefits, and the utilities are all in his name, except water rates, which are in my mother's. My mother receives state pension, a small pension from my father's employers, and the lower rate disability benefit (she has osteoarthritis and walks with a stick). Sister in law works 15 hours a week, so she might qualify for HB, and maybe my mother would. I would have to find out more about this. The expression 24/7 carers is one my mother uses (and my brother also), but my mother is able to do all but the heavy housework, she does her own laundry, and some of the cleaning. They help with the shopping, but do no cooking, they prefer takeaway food, which they share with her. I certainly would not consider them her carers! They provide her with companionship and some help, and she pays the wife a monthly allowance herself for this, as well as paying for other things for them. I will consider giving them an AST if they carry this on, using a letting agent as suggested. I'm waiting to hear from my solicitor as to the true legal position, and I am so grateful for everyone's help and input. It is such a shame that what started out as a kindly gesture to help my mother has turned out to be something which is now biting me in the backside!!

All BankersAreBarstewards Smith

17:49 PM, 8th December 2014
About 4 years ago

do let us know how things go Catherine..... altho I am a long standing landlord, I have been renting myself, for convenience, for the last few years, and when a l/l gives you notice, it is a terribly frightening thing to bear.

If you could get a letting agent to visit your family and suggest a positive way forward for all it will take the emotional heat out of the situation - and could result in a compromise situation for all.

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