contrived / non commercial tenancu

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  • #23453
    stoke
    Participant

    we have an appeal tribunal hearing in the next few weeks concerning a claim where the property is owned by the tenants parents.

    there are a number of factors that indicate the tenancy is not bona fide, however i wondered if anyone could direct me to any relevant case law that would support our case?

    #12629
    petedavies
    Participant

    The fact that the property is owned by the parents means very little (if anything) on its own. Can you post additional reasons for your decision?

    #12630
    Kevin D
    Participant

    Erm, isn’t this a bit late in the day? 🙂

    Sounds a bit like retrospective justification of a decision, but anyway, here goes.

    1) Take a look at the commentary and analysis to [b:e53775ca1f]HBR 9[/b:e53775ca1f] in the 19th edition of “Findlay” (i.e. the CPAG book). If you only have the 18th edition, it’ll be under HBR 7.

    2) There are several Cmmr Decisions on this site covering HBR 9 issues – click on the link: new.hbinfo.org.com/menu2a/list_liability_comdecs.php

    If your decision was “non-commercial”, you could do worse than start with [b:e53775ca1f]R(H) 1/03 / aka CH/0627/2002[/b:e53775ca1f].

    3) Some of the case law mentioned in the CPAG *may* be on this site – click the link: new.hbinfo.org.com/menu2a/judgements/judgements.htm

    Hope the above helps.

    #12631
    stoke
    Participant

    several reasons for decision.

    1 delay in claiming although no change in customers circumstances
    2. discrepencies between the amount of rent charged (as stated on the application form) and the copy of the rent book provided
    3. no action taken by her parents to recover substantial arrears (£4k), when asked why we are told “because it is our daughter”
    4. letter received from customer dated 22.5.2005 states that no writen agreement or tenancy agreement exists (when a 2nd application form is received, included is a tenancy agreement dated 11/4/2005.

    hope this helps and sorry for being a little vague on my initial notes

    #12632
    Kevin D
    Participant

    Lovely :).

    I think I’d be going for the 3-card trick and raise all of these at Tribunal:

    1) no actual liability; or alternatively,
    2) not on a commercial basis; or if this doesn’t apply,
    3) liability created to take advantage of the HB scheme.

    These further CDs may be of help (all on this site):

    [b:a834bbd7aa]CH/4882/2002
    CH/4305/2004
    CH/2062/2004
    CH/0663/2003
    R(H) 03/03 (aka CH/1618/2002)

    CH/3458/2002
    CH/2516/2003
    CH/2694/2005
    CH/0854/2006
    CH/2124/2005
    CH/2899/2005
    CH/3743/2003
    CH/5147/2002
    CH/1915/2004[/b:a834bbd7aa]

    There are others, but all of the above should give a good indication of the kind of arguments and issues that are likely to arise.

    Hope it helps.

    #12633
    stoke
    Participant

    it helps a lot.

    my only query is that i have not been involved in the original decision making process or in submitting the appeal, but then again i only present the cases!!!!!

    i was intending as you say to play the three card trick, however in the original decision we have only refused the claim under contrived (of which i think there is some evidence) and commerciality (of which i think there is a lot of evidence), in adopting this approach we appear however to have accepted that a legal liability exists (and i am not convinced there is).

    am i entitled to now raise a doubt on the legal liability issue or am i restricted to the issues of contrivance and commerciality?

    #12634
    Kevin D
    Participant

    Dave,

    Yes, a new issue can be raised at Tribunal, but if the other party has not been given notice, the Tribunal should adjourn (fair hearing etc).

    My advice is to write urgently to the Tribunal AND the clmt (& rep if there is one) clearly stating that the LA intends to raise the issue of ACTUAL liability [[b:da554a84a0]relevant law is HBR 8 & s.130(1)(a) SSCBA 1992)[/b:da554a84a0]].

    If the Tribunal refuse to consider the issue on the basis that it was not part of the LAs original decision, that is wrong and would be an error in law. Obviously, there is nothing to stop the Tribunal finding that there is/was in fact a liability.

    One good reason for putting as many options as possible before a Tribunal is that a Cmmr cannot consider an issue that is not before a Tribunal.

    If evidence of rent payments is at issue, it may be of interest to note that Cmmrs have occasionally direct the landlord to provide bank accounts showing purported payments – e.g. [b:da554a84a0]CH/3458/2002 & CH/1915/2004[/b:da554a84a0].

    Regards

    #12635
    stoke
    Participant

    thanks for the advice

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