Terms & Conditions

[Graham Keys]

I have a case where a married couple lived in a house together, separated but not divorced. We accepted that they were living as separate people and not as a couple – apparently they had been separated for 27 years but the wife did not believe in divorce.

The house was owned solely by the wife with the husband renting a couple of rooms from her. HB put into payment for the husband with the wife as the landlord some years ago now.

The wife died in July and we have been trying to establish the rental position since then. The daughter had phoned to advise us of the death and said she was the executor. I suspected that the house might be inherited by the husband but the Land Registry shows no change as yet. Last communication was from the daughter on 12/10/06 advising that solicitors were dealing with the estate and that she wanted HB paid to the estate from July. The daughter and her partner have now moved in with the husband and are now renting out their old house to their son and daughter.

Has anyone else come across this before? Should we just keep issuing payments to ‘Executors of the late…’ until we finally get told who inherited the house? I was hoping for a straightforward Mrs A is dead, Mr B is now the landlord but no such luck.

[Kevin D]

Ask for a copy of the will – that will (hopefully) confirm who ownership passed to.

And, as there is a doubt about the current ownership, I think you are well within your rights to continue suspending payments of HB until the issue is resolved by way of evidence.

If the evidence is not forthcoming, the claim could be terminated, or inferences could be drawn.

Regards

[Anonymous]

If there is no will then regardless of the 27 year seperation the husband will be the next of kin.

[Graham Keys]

Thanks for that.

It turns out there is a will that says the house should go to the daughter. The solicitor just took on the case last week and thinks there is something ‘odd’ about how the death cert and will have just been floating about without action for the last 3 months. She says that until the will is executed the daughter can’t be considered to be the owner.

As the daughter is now resident in the dwelling, would that not make her a resident ‘close relative’ landlord which would prevent HB?

If so, should we pay out HB to the ‘estate’ until the will gets executed, then halt it under Reg 9(1)(b)? Unless the fathers rooms are considered a separate dwelling…hmm

[Graham Keys]

Sorry to bump this one up but this one is still haunting me.

We have now found out the daughter was resident in the property since before the wifes death. HB was refused after that under Reg(9)(1)(b) on the grounds that the daughter is now the landlord and is a resident close relative.

The daughter is arguing that while she may be a resident close relative, she was not the landlord until the will was executed at the end of October and so wants HB paid from July to end of October (which promptly ends up in the daughters hands).

I think she has a point – anyone with experience of property law out there who can confirm who is considered as the landlord from the date of a landlords death until they finally decide who inherited the house?

[Anonymous]

Was the daughter an executor of the will? If she wasn’t, then I think I would agree with her that she was not entitled to receive payments of rent income until the executors finished dealing with the estate. As a beneficiary of the estate she might have been entitled to some or all of the accumulated rent income when the estate was distributed, but the claimant’s rent liability as it arose week-by-week was not to her.

[There would be a second issue to consider: Reg 9(1)(e), but I’ll come back to that.]

If she was an executor, then I think it depends on the answer to a question about the legal status of executors to which I do not at present know the answer.

This is the question: was the rent liability to the inanimate estate, or to the executors in person? I understand that dealings with a trust are conducted through the trustees in person: so if property belonging to a trust is rented out, the rent liability is to the trustees personally rather than the legal entity of the trust itself. If executors of an estate act in a similar capacity, then liability would indeed be to the claimant’s daughter and Reg 9(1)(b) would apply (subject to any smart arguments about the rooms forming the dwelling as you rightly note). Is an estate just another kind of trust? I honestly don’t know, but if anyone out there has a general legal background this is the sort of thing they might know?

This brings me back to Reg 9(1)(e): even if the daughter was not an executor of the will, she was certainly a beneficiary. If an estate is a kind of trust, the claimant’s liability would have been to the trustees of a trust of which his close relative is a beneficiary – although again, as with Reg 9(1)(b), that would only apply if he and his daughter “reside” together. Also, as this was a pre-existing tenancy before the wife died there would probably be a strong case for saying that the Reg 9(3) escape route applies (not created to take advantage).

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