Landlord is not the owner

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  • #39653
    clareb
    Participant

    Father and daughter (with learning difficulties) live together in a house owned by the father. Father goes into a nursing home. We receive a HB claim in respect of the daughter for the property which states that she is renting from Mrs X. Mrs X is a close friend of the father and has always said that she will care for the daughter, and father, when needed. Mrs X states that she and her husband will inherit the house on the death of the father. The land registry documents show that the father is the sole owner and the only charge is to the mortgage company. Evidence received states that the term remaining is 34 years – the father was 74 when the mortgage commenced – would he really have been given a mortgage over 40 years at the age of 74? Prior to this mortgage he had owned the house outright since 1999.

    Does Mrs X have enough interest in the property to grant a tenancy?

    A letter from Mrs X states that the nursing home is taking all of the father’s income and, therefore, he cannot pay the mortgage. She goes on to say that, as the daughter now has to pay her household bills and food, she can not afford it hence the claim for rent. Surely, this is an admission of contrivence? The daughter cannot afford the mortgage payment and, therefore, a rental liability has been created. Should I also be stating that the payment is not the right kind of payment for HB as to all intense and purposes it is for the mortgage?

    Thoughts please.

    #112914
    andyrichards
    Participant

    Well an awful lot of HB is to all intents and purposes paying mortgages……

    I am not clear where this mortgage comes in. You stated that the father owned to property outright but then there’s a mortgage. Is Mrs X acting on the father’s behalf? The fact that financial circumstances have changed and one way to deal with that is to start charging rent doesn’t seem to me to be evidence of contrivance. I would have thought that no liability is the first thing to argue, on the basis that Mrs X does not have any apparent right to create an enforceable contract on this property.

    #112917
    clareb
    Participant

    Andy, yes my first thought was there was no liability as she doesn’t have the right to grant/enforce the tenancy.

    The house was owned outright in 1999, I have seen evidence that the Land Registry sent a land certificate at this time following the discharge of a previous mortgage. However, a new mortgage was then taken out in 2005 and this is the one that is still in existence.

    It was more the statement that the claim for rent has come about because neither the father or daughter can afford to pay the mortgage. I accept what you say about the change in financial circumstances leading to the need to charge a rent but surely, it would be the father charging it.

    Additionally, the tenancy agreement states that Mrs X is the landlady, the daughter is the tenant and the Guarantor is Mr X – the landladys husband!

    The rent charge is £270 pcm. She states that she has asked for this amount because that was what the mortgage charge was up until May 2010. It then reduced to £170 pcm but she requests £270 because it can easily go up to the original amount or more.

    #112919
    liffe
    Participant

    Does Mrs X have power of attorney, has the claimant’s father asked for this arrangement to be facilitated by Mrs X?

    What is the alternative, the house is repossessed, the Council have a duty to then house the daughter and then and only then is it accepted that a rent liability exists?

    I would be inclined to explore the agreements set in place by the father, if he is in a nursing home it may be that he is not capable of being the landlord. Could the situation be viewed as: Mrs X is acting as an agent?? Am I being too lenient???

    hmmm… I don’t know if this is a straight forward one, good luck though

    #112923
    Kevin D
    Participant

    I agree that more info is needed about all of the arrangements. The one question I would end up asking though is this: Does the tenant have the right to occupy the premises irrespective of any agreement introduced by Mrs X? If “yes”, no HB.

    #112927
    clareb
    Participant

    No Mrs X does not have power of attorney and there are no legal documents in place to show that she will inherit the property or to confirm any agreements that they have. When asked for any evidence, for example a copy of the will, Mrs X said that it was not our business. Furthermore, I am not quite sure how she will get to inherit the property as surely, being in a private nursing home, the property will need to be considered in respect of his fee’s.

    Kevin, sorry but how would I decide if the daughter has a right to occupy?

    #112928
    Kevin D
    Participant

    I presume that the daughter’s presence was effectively allowed by her father. In the absence of any change of view by the father, that must still be the case. Based on the info so far, no one else has the right to change the basis of her occupancy, certainly not Mrs X. In my view, Mrs X can create all the tenancies she likes; none has any binding effect whatsoever on the daughter. In turn, no HB.

    #112929
    clareb
    Participant

    Kevin, thank you. That makes perfect sense.

    #112931
    andyrichards
    Participant

    Far it be it from me to fling out accusations and I am not saying there is any real evidence of anything untoward, but with two clearly vulnerable people here, I can’t help wondering about the possibility that there is some financial abuse going on. Feel free to disregard that if there’s no evidence.

    #112935
    clareb
    Participant

    I must admit that had crossed my mind. Especially considering the tone of the letter received from Mrs X. She accuses us of a lack of compassion yet she is the one taking the daughters inheritance. The current mortgage outstanding is £60K. So when taken out in 2005 the mortgage must have been for in excess of £70K. The father was in receipt of SAR during this period and in 2007 a review form completed showed his capital to be £2K. I wonder what became of the £70K?? The property is an ex-council semi and in our area wouldn’t be worth much more than that.

    I have just read the most recent letter from her and she has stated that we ‘cannot ask or expect a mentally impaired girl to enter into any agreements for which she has no knowledge of or what she is signing’. Yet she saw fit for her to sign a tenancy agreement?
    She also states that if she has to have her removed from her home she will put in new HB claimants and charge £500 plus.

    #112940
    liffe
    Participant

    I don’t know if I much like this ladies attitude…

    Tell her that if you decide that she doesn’t have the right to form a tenany for this claimant, she will not have the right to create a tenancy for any other person that SHE might put in there. If you can be satisfied via relevant evidence that Mrs X has the right to create a rent liability then all her problems will be solved and SHE need not remove anybody from THEIR home (Please note my sarcasm).

    BTW Where is your Social/ Adult services department and what is there view on the situation?

    #112943
    clareb
    Participant

    Thank you for your comments Barry. We haven’t yet been able to speak to the Social Services Department directly. Mrs X does tell us though that they were taken a back by our questions.

    I have just found a letter in the file in which a local solicitor advises that the father signed an authority authorising his bankers to supply Mrs X with any information that she might request regarding any of his accounts. The date of the authority was 2005 – the date of the mortgage! I am wondering whether the mortgage was actually taken out to give Mrs X some funds?!?

    #112944
    Kevin D
    Participant

    This is beginning to sound horribly unpleasant. I wonder what the Police would make of it….

    Edited to add: [quote=clareb]I have just read the most recent letter from her and she has stated that we ‘cannot ask or expect a mentally impaired girl to enter into any agreements for which she has no knowledge of or what she is signing’. Yet she saw fit for her to sign a tenancy agreement?
    She also states that if she has to have her removed from her home she will put in new HB claimants and charge £500 plus.[/quote]

    Based on THIS info, all of the case law cited points towards nil HB. Mrs X is plainly stating the daughter isn’t capable of entering into a tenancy.

    #112946
    liffe
    Participant

    I don’t like Mrs X! Let’s not pay and see what a Tribunal says.

    #112948
    clareb
    Participant

    Thanks very much to you all for your input. Apologies for the piecemeal information but I have been very confused by this case and have struggled to make sense of all the different issues.

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