Terms & Conditions

[Anonymous]

We have a claim where a man is renting from his wife. They are separated at present. No mention has been made of divorce. It is not a home they lived at together. The wife appears to have bought the property about a month before, and there is a discrepancy between the date he became liable for CTX by virtue of occupying the property, and the date he became liable for rent according to the tenancy agreement. Basically, the tenancy agreement starts [i:a60b84b114]after[/i:a60b84b114] the liability.

He says he has no interest in the home, and no legal recourse to any proceeds of sale. We have no proof of this.

Given the time frame, it would appear that the wife has bought the property in order to rent it out to her husband.

Zebedee only talks about former partners not being eligible to claim in a property they used to live in as a couple with their landlord (or words to that effect). What about where a married couple separate and the husband goes to live in a house owned by his wife?

Is he eligible for Housing Benefit? And if not, why not? Is it straight-forward non-commercial tenanacy?

I seem to recall something about one part of a married couple being unable to sue the other for debts. Surely they are jointly and severally liable? So I’m thinking there is no liability for rent.

Can anyone offer any help?

[Anonymous]

[i:3a574c0a83]tumbleweed rolls through the thread…..[/i:3a574c0a83] 😆

[andyrichards]

Well I’ll have a go, but it is probably hard to give too many precise answers.

Reg 9 (1) (c) does not bite because, as you say, they never lived in the property together. I do not see how they can be jointly and severally liable for a liability that has been created by one of them.

I am not aware of anything which would legally prevent a legal liability existing here, but I could be wrong. As to issues of commerciality and contrivance, it would depend on the facts of the case, but I do not think it is as simple as no liability can exist.

[petedavies]

I think the first stage has to be to decide what the relationship between them is at the moment, separated at present could cover a multitude of sins (including contrivance and out&out fraud).

Balfour -v- Balfour (1919) is probably the case you were thinking of, CoA held that arrangements between married couples were assumed not to be intended to create legal relations.

Merritt -v- Merrit (197 {something}) considered the situation when the relationship had broken down – they were in the throes of a divorce and were held to have entered into a contract.

The view of the Courts on this subject seems to be moving towards an acceptance that a contract can exist.

It may also be worth having a read through the Matrimonial Causes Act – again, depending on the relationship he may have some claim on either the property or the monies used to purchase it.

[Anonymous]

The claimant says they are not divorced, nor divorcing. Just ‘separated’.

Strange thing is that CTX were notified by the conveyancing solicitors that Mr. X had bought the property, [i:b7eb111ac8]not[/i:b7eb111ac8] Mrs. X….

I think if they were divorced, we would still have to carefully consider the set up. As they are not legally separated or divorced, however, I still tend to see them as a single unit, i.e. “What’s hers is his and what’s his is hers”.

[Kevin D]

In addition to the above posts, a land reg enquiry would soon sort out who was the owner & whether or not anyone else had a legal interest.

Assuming there is no bar to creating “legal relations” (and I just don’t know); then there are already issues that bring “non-commercial” considerations to the fore and, albeit less so, “contrived”.

In particular, I’d be asking why did the clmt’s wife buy the property? Were other tenants considered? What input did the clmt have in the purchase choice? Is it furnished (if so, who decided?)? And so on….

Oddly, had one such case in about 2001 involving FORMER partners. Tribunal emphatically found that on no view of the facts could the tenancy (or agreement) be seen as being on a commercial basis. In that case, the clmt had even chosen the furniture and there was never any intention to let the property to anyone else. The LAs view was that it was an attempt to get a property purchase funded by HB. Er, a bit like certain “exempt accommodation” cases……. (Ed: ALLEGEDLY) 😈 ….

Regards

[andyrichards]

But you do have to look at their living arrangements in the here and now; it is not a matter of whether they have separated via some legal process. If they are not living in the same household they are not a couple within the meaning of Reg 2.

It sounds like there is all sorts of information cropping up in this case which may lead you to doubt the credibility of what you have been told but that’s another issue. Unless you have some reason to doubt that they are living in separate households I do not think going down the route that they are still a couple is going to be very useful.

[petedavies]

Problem is – if you are going to go down a creation/non-comm route you will have to first be satisfied that a contractual liability exists.

The relationship between the two parties is absolutely fundamental to this decision. Your decision should be drawn from the law applicable to contract.

If they are not divorced or divorcing, “just separated” could mean anything (A cynic might say they have just separated to get some extra income). You could be in a twilight zone between Balfour & Merritt. It is for the claimant to satisfy you that there is an intent (and a capacity) to create legal relations.

In addition to the enquiries Kevin said to make I would expect your claimant to have made some form of enquiry of a lawyer – ask him to prove it or explain why not. Especially given the letter from the conveyancing solicitor – write to them and ask them to explain how they made such a mistake.

[i:7b05c84f34]Betcha wish the tumbleweed was back![/i:7b05c84f34]

[Anonymous]

I do rather feel caught between Merritt and Balfour. Balitt, one might say!

However, with Merritt, there was a long term legal separation. Which doesn’t exist in this case. Plus, the claim form was actually requested when they were still living under the same roof….

I’m feeling quite dizzy with it all now. 😯

I’m trying to take the line of least resistance, which appears to be whether or not he has a legal financial interest in the property. Regardless of what he [i:0fd0a3bae3]says[/i:0fd0a3bae3] (which is that he doesn’t have any financial interest in the property or any recourse to any proceeds of sale), my contention is that as a married couple, in law, he does have. Or [i:0fd0a3bae3]could[/i:0fd0a3bae3] have. After all, both properties would be considered as forming part of any financial settlement on divorce. Which is why I’m thinking he’s not eligible for housing benefit because he has a financial interest in it.

[Kevin D]

The problem with only considering one of several options is that it makes it much harder for the LA to revisit the alternatives later. It’s possible, but awkward.

My suggestion, for what it’s worth, would be to follow the line you think best / prefer, but include the other options as “in the alternative”. At least then, if it goes to appeal, no one can say they weren’t on notice etc…..

Regards

[Anonymous]

That’s true. I just don’t like asking lots of questions, when the answer to one of them will be ‘no entitlement’. I think it gives people false hope. Having said that, it’s nice to have all the information to form a solid case….

Ah well. Maybe I’ll write a long letter and he’ll be so fed up he won’t bother answering 😉

[Author]

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