Council Eviction – What Tenancy do I have?

Council Eviction – What Tenancy do I have?

19:01 PM, 25th July 2013, About 9 years ago 25

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My Question is for a friend of mine…

He is in Council rented accomodation, he has been there for 16 years, but the tenancy was originally made in his wife’s name only, he moved in, expecting his wife and son to follow shortly, but she never did when the fell out and eventually got divorced.

He has never had any tenancy paperwork in his name but has always paid the rent, does he have an assured tenancy as a matter of default since he has been there for so long and he has always paid, and the council have always accepted the rent from him.
I thought if someone was living in a property from years ago, even without a written tenancy aggr. they automatically had an assured tenacy, similar to the automatic AST one would automatically get nowadays.

I ask, because there are moves to evict him, but only him, from the block of flats.

He is very quiet, keeps himself to himself, so is no trouble to anyone, but has had trouble/harrassment from this same councillor before, who is trying to get him out this time.

His flat was assessed for a new kitchen and bathroom about 6 years ago, and both got condemned, but nothing ever got done about it. Recently he was advised to take it up with ‘decent homes’ in the council, but this enquiry seems to have triggered off this action from this councillor for his area. (this councillor is the housing officer I believe)

He is in a two bed flat, and it’s felt they are doing this to try to get it off him for a single child/young children family.

My friend has had mental health issues in the past and is still not fully recovered and is very stessed by the whole situation.

Thanks Council Eviction - What Tenancy do I have?



Comments

Jeremy Smith

12:23 PM, 27th July 2013, About 9 years ago

Interesting Ben,
So are you saying that even though he may well be classed as a council tenant, he could still just be served with a 28 day notice to quit and have no right to challenge it, just because/even though, he has never broken any implied tenancy agreement he may have had by living there for a long time?

Mark Alexander - Founder of Property118 View Profile

12:24 PM, 27th July 2013, About 9 years ago

Reply to the comment left by "Ben Reeve-Lewis" at "27/07/2013 - 12:09":

So Ben, in effect, I read that as though you're saying, basically he's screwed. Am I reading it correctly?

Ben Reeve-Lewis

13:08 PM, 27th July 2013, About 9 years ago

@ Colin Because we are talking legal stuff here we must be very careful about the words. In a sense what I am saying is that although he is a tenant of the council, it doesnt make him a council tenant. Sorry if this sounds obstruse or pedantic.

A straightforward council tenant would be a 'Secure' tenant (There are 19 or 20 different types of tenancy and license) but councils can also grant introductory tenancies and impose demoted tenancies on their occupiers, usually as a tool in anti-social behaviour. Sometimes they can grant tenancies in certain circumstances, usually initial homelessness application, of what are termed 'Non-secure tenancies'.

The logic is this - your friends's ex was the 'Secure' council tenant. She let him stay there as her licencee, meaning simply with her permission. When she left she ceased to occupy as her sole or principal home, which knackered her secure status. Had he merely continued in occupation without paying any money to the council he would have been an unauthorised occupier. Had he continued paying use and occupation charges he would still have had no real security but we have already established that the council took rent from him, at least in the form of housing benefit so that would make him a tenant. The only question then is "What type of tenant?", that's where we come to common law tenancies in the absence of any clearly defined agreement, regardless of how long he lived there.

I recently had a client who had lived in a housing association property for 25 years and raised her children there. The housing association simply decided it didnt want to own the property anymore and decided to sell and evict her through no fault of her own. They served an NTQ and got mandatory possession because the housing association was a created under Industrial and Provident Society rules, which meant she had no defence. it happens. (see Beresford v Mexfield)

@Mark, crudely put but Yep!

Industry Observer

9:47 AM, 28th July 2013, About 9 years ago

Not my area of expertise Mark.

Ben Reeves (as Mary says) is the man for this job.

Ben Reeve-Lewis

10:04 AM, 28th July 2013, About 9 years ago

Reply to the comment left by "Industry Observer " at "28/07/2013 - 09:47":

Twice in one week????????????? Jeez I/O, we'll be picking out curtains next hahaha

Mary Latham

20:19 PM, 28th July 2013, About 9 years ago

Reply to the comment left by "Ben Reeve-Lewis" at "28/07/2013 - 10:04":

I am going to order my hat on Monday. Congratulations boys.

Come on Ben rise to the occasion and search that brain full of case law and find a solution for this man - please.

Follow me on Twitter@landlordtweets

Industry Observer

20:50 PM, 28th July 2013, About 9 years ago

Hang on we haven't been formally introduced yet!!

The three C's need to be satisfied for a tenancy of any type to be established

Control
Consideration
Contract

In this case clearly the first two have been, though the Council may well argue that they did not hand the keys to the tenant.

But what about contract? I assume this can be established through approobation, the fact the payments have been made and accepted.

I just wonder if there is any tenancy at all and whether this gentleman actually has any legal right of occupancy.

Overall I've heard some odd things in the past 20+ years but never someone moving in ahead of the tenant who wasn't even named!!

Ben Reeve-Lewis

9:36 AM, 29th July 2013, About 9 years ago

Colin did say "she offered that he could come and move in with her.
Well, because they were not ‘together’ as a couple it wasn’t long before she found someone else, then left"

Now I thought long and hard about this case. My nature and my job means I cant walk away from things unless I know there is absolutely no chance of saving someone's home, either the landlords or the tenant's. Mary? your exhortation made me look at some of the less well known case law out there and have found some more indicators, with two different issues that may either help or hinder, depending on which the council's legal team might take or a judge in a possession application.

Tower Hamlets LBC v. Ayinde (1994) Basically two joint council tenants invited someone to stay with them and later gave up the tenancy, leaving the guest in place. As is the case with Colin's friend the property couldnt be assigned over because the guest wasnt eligible to be an assignee. Tower Hamlets issued a payment book and continued to receive rent from the guest for 4 years, later on serving NTQ and deciding to evict her.

The court of appeal decided that a tenancy was 'inferred', on the basis that a) the council had known about the situation for 4 years and had continued to accept rent b) it knew that the rent was coming from the guest.

However there is also the case of Westminster v Basson (1991) Basson stayed on after the true joint tenants terminated their tenancy . As I mentioned above one housing officer was wise enough to issue a payment book for "Use and occupation charges" not rent. A year later she claimed housing benefit (which is for rent only remember?) and another council officer issued her with a rent book. The argument ran, and this is my point on Colin's friend, that a tenancy is inferred, but the court of appeal disagreed, the judge saying "The events after the initial letter merely showed that one department of the council was unaware of what was happening in other departments".

Colin emailed me personally over the weekend and it would appear that his friend has legal representation over this. Lets hope they can persuade the council to take on board the Ayinde logic rather than the Basson

Mary Latham

9:49 AM, 29th July 2013, About 9 years ago

Well done Ben. Now we have all learned something new and perhaps it will help Colins friend too.

Hahahahaha
“The events after the initial letter merely showed that one department of the council was unaware of what was happening in other departments"

How very unusual - this looks like a "get out of jail free card" for every council.

Sorry Ben I couldn't resist

It looks like you have been jilted by IO

Follow me on Twitter@landlordtweets

Ben Reeve-Lewis

9:53 AM, 29th July 2013, About 9 years ago

Jilted? Well our relationship has always been a complex one Mary. A bit like Burton and Taylor.

I wonder about those comments of the judge in Basson. If his logic held water councils wouldnt get anywhere. People sitting 2 feet from each other can be working on the same case and not know haha

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