Long tenancy?

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  • #23478
    caroline c
    Participant

    Hi,

    Hope someone may be able to give me some advise.

    I have a case on appeal against the decision to refuse HB on the basis that they hold a long tenancy (a tenancy in excess of 21 years) and therefore are not eligible to claim HB.

    Background is, the tenant has been living in the property since 1959 and circumstances are such that she has now claimed HB to help pay the rent. She has provided a tenancy agreement made on 2/8/1987 stating “the tenancy to commence on 2/8/87 and shall continue until the tenancy shall by either the land lord or tenant giving to the other, or leaving at his last known place of abode, 3 months notice in writing to expire on any one of the rent payment days hereinafter mentioned in any year”

    On the form the tenant has stated that the tenancy is an assured tenancy for 99 years.

    Her appeal argues that although it is a lifetime agreement, it has only been running for 19 years and who knows if it will exceed 21 years.

    My initial concern is that as no specific time period has been put on the agreement (not said life time, number of years) and it just seems to be open ended, whether it should be treated as a long tenancy. I have browsed other posts and CH/2743/2003 and CH/2258/2004 which refer to life tenancy’s being treated at “long tenancy’s”, but I am not sure if this is legally a life tenancy as it has not been stated as such on the agreement.

    The rent is £231.32 per month for a band E property and I will be writing for further information just to clarify the commerciality of the liability – so to cross t and dot I’s

    Meanwhile, any advise, suggestion regarding long tenancy would be welcome.

    Also, if the decision is deemed correct… is there any other resources where this lady can claim help towards the rent on her home. She is a pensioner in receipt of state and an occupational pension.

    Thank you, Caroline

    #12822
    Kevin D
    Participant

    Your caution is justified. See [b:0fc52bc17f]CH/0883/2006[/b:0fc52bc17f].

    #12823
    Anonymous
    Guest

    The case law on long tenancies has moved on a bit recently with CH/0883/2006. The Law of Property Act 1925 requires any lease in excess of three years to be created by deed – that is, under seal. If that specialised legal document has not been used, there is not a long lease according to the 1925 Act.

    In all probability, a court would take the view that an equitable lease exists if it is clear that the parties intended to create one – equity sees as done that which ought to have been done. But the matter will only be decided by a court if one of the parties attempts to enforce the obligations of the other under the lease: as long as everything is ticking along without disagreement, there is no reason for a court to be involved.

    The Deputy Commissioner decided in CH/0883/2006 that he was not in a position to say there is an equitable lease – only a court with equitable jurisdiction could say that (i.e. a court in which proceedings can be brought to enforce the obligations in the lease).

    The Tribunal in 0883 had decided that the agreement should be seen as an open-ended weekly tenancy of no fixed duration, which is of course eligible for HB. The Deputy Commissioner could not find fault with that view and it may well be the most sensible thing to do in your case as well.

    #12824
    caroline c
    Participant

    Thank you for the information,

    Unfortunately, it’s caused me further questions, so any further advise is appreciated.

    So the commissioner in this case decided that as there was no seal as required by section 52 of the Law of property Act 1925, the tenancy is open ended and therefore a weekly tenancy had arisen between the parties.

    While I’ve not looked at the Law of Property act 1925, I have read that a lease granted since 1989 will require a written contract, and such leases will also require a deed (as they are for a duration of more than 7 years) so it would appear that the commissioner decision was on a tenancy set up after 1989. Am I right to assume that this would not apply to leases set up prior to 1989 (as this is the case here) and therefore the Housing Law would not come into it.

    Im slightly worried this decision is going to be swayed by law and things i dont understand and are way over my head.

    I have decided that I need to ask further questions of the tenant regards to the rent liability prior to 1987, meanwhile, the “long tenancy” issue needs to be resolved.

    Thanks again, Caroline

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