Father of claimants child is only a joint owner- not the one who she is liable to

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  • #43476
    Amanda JB
    Participant

    Hi

    I have searched some older posts on this subject but there did not seem to be a definate answer.

    I have a large O/P appeal, decision is that she is to be treated as not liable per reg 9 (1) (d)

    Grounds for appeal are that she was not liable to her childs father, she was liable to the other joint owner.

    I have read CH/4003/2004 and that does not help me, i have also considered CH/1973/2008 which was one of our cases (see para 10 & 13) of that decision, does this help me?? as a joint owner is he legally entitled to enforce the liability thus by effect she is also liable to him.  There does not seem to be any entries on the land reg showing any trusts etc.

    She has given others grounds in that she assumed/thought that her ex had surrendered the tenancy to his friend in repayment of a debt ect but sure none of that has any relevance.

    (NB: the pty is a flat above commercial premises which she also occupied as a salon!)

     

    I know i could go down the contrivance route if all else fails but would rather go with 9 (1) (d)   

    #123419
    wintlejb
    Participant

    Hi Amanda

    I’m not sure you can go down the 9(1)(d) route because the agreement is not between the claimant and the father of the child.

    I had a similar case thrown out by a tribunal where the father of the child was the sole owner but the agreement was not between the former partners but with the grandmother.

    I had also argued that the grandmother was not able to grant a tenancy because she was not the owner but the Tribunal decided that a ‘tenancy by estoppel’ had been created.

    #123429
    Amanda JB
    Participant

    I was thinking along your lines but that all makes a mockery of the regs and it means that anyone could get HB by just nominating another person to write up the tenancy agreement.

    I was hoping there was some caselaw out there i could not find.
    Have you read the 2nd one i quoted, do you not think its relevant?

    #123430
    Anonymous
    Guest

    I had something similar years ago and although land registry may not help you I think you might be able to say that the child’s father is an “equitable” landlord because a trust is automatically created between the two joint tenants. The other joint tenant holds the property on trust for both of them so the tenancy agreement with your claimant is, in effect, a tenancy with both of them. Failing that, contrivance is a definite possibility. Jonathan’s case is interesting (but not the same because your LL IS a joint owner), and I’ve had that situation as well and even asked DWP for advice – they advised to proceed under contrivance rules.

    #123538
    Amanda JB
    Participant

    I now have 2 x different opinions, can anyone else offer any advice please before i make my decision

    #123541
    Anonymous
    Guest

    You haven’t had two different opinions. Jonathan’s case is not the same as yours, mine was. Can you not ask your legal section about the finer points of tenancy law (that’s where I got my advice from)? Another point – a tenancy granted by only one of the parties might not even be valid and your claim would fall under Reg 8 (no liability)

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