Terms & Conditions

[Jacqui Fowler]

I have an appeal the scenario is this:

We received a claim for HB from a Mr A.
He purchased his council house in May 2002. T
he land registry shows Restriction added (deed of trust dated 17.3.04 added to land registrty details .
The he property was transferred to Mr B (his brother on) 18 October 2005) after the period for paying back the discount had expired.
Mr A wants to claim HB but has been refused on grounds that Reg 9 1(h) applies.
He said although he bought the property his brother paid cash for it. The intention was that he would then pay his brother the interest and eventualy the capital back. He said a deed of trust has exisited since the purchase but we have not yet got evidence of this. His brother is now charging rent!! from 1 Jan 2006 and a tenancy agreement has been drawn up. The brother said he cannot afford to let MR A stay in the property without paying rent because his circumstances have changed.

Mr A has not provided evidence to satisfy us tht he could not have continued to live in the property without relinquishing ownership, although it is known that he had an accident at work and wnet onto Incap in Jan 04. He also said he trasferred ownership because he could no longer adhere to his end of the agreement with his brother because he was not working.
He has no evidence of the money the interest he paid his brother (said he paid cash) no receipts.
Comments would be appreciated.

I have asked for sight of the deed of trust

[peterdelamothe]

Hi Jacqui

My first thought is whether the propery was bought leasehold or freehold? If the former then the five year rule does not apply as the “fee simple” cannot be disposed of. There have been a number of threads on this point which you might like to search for. Most but not all CT is sold leasehold.

If you fail on that level, I agree you will need to consider both the details of the trust but also whether there is intended to be a legal liability to create a landlord / tenant arrangement between the parties. This is always a strong argument in my experience – is this just a family arrangement? Who signed what? How was the “rent” level fixed? What advice was sought etc.

[Anonymous]

Although the case was concerned with deprivation of capital, R v Caerphilly CBC HBRB ex p Jones (1999) could be relevant as it also centred on a deed of trust.

As for accepting uncorroborated evidence see R(I)2/51, R(SB)33/85 and CP/3037/2004.

The burden of proof in Jones was on the Council whereas the burden here is on the claimant, but the evidence even without corroboration on the face of it seems to be in favour of the claimant, but assuming the property is freehold, I think it all hinges on the terms of the trust deed.

I agree with Peter Delamothe that noen of tis applies if the property is leasehold even for 999 years as the claimant could not have been defined as an owner

[Jacqui Fowler]

Property puchased on 13 May 2002 paid for by the claimants brother.
This madke the claimant thelegeal owner at the time and the brother had a beneficial interest because he stumped up th cash.

The property is freehold and there was no mortgage outstanding as it was paid for in cash. The intention was that the claimant paid back the money
to his brother at some time. Initially payments were to be interest and then at a later date the capital would be repaid. The claimant does not have records of the interest payments he made. In March 2004 a deed of trust was drawn up stating:
The owner shall be entitled to occupy the property rent free for as long as he shall wish and that the power of sale shall not be exercised without his consent.

Then in October 2005 owner ship of the property was transferred to the brother who stumped up the cash to purchase the property. A tenenacy agreement was drawn in in Jan 2006 The former owner then claimed benefit in Jan 2006

I think that we could say we could not treat him as being liable to make payments based on the existence of the deed of trust. This clearly showed the intention of both parties that the claimant should be able to live in the property for as long as he wished.

It also seems that he did not have to relinquish ownership of the property
to remain in it. So even if Reg 8 does not apply, certainly Reg 9 1(h) does.

Any opinions please before I send this to Tribunal Service.

As I see it: the fact tht a deed of trust existed saying the claimint could

[Jacqui Fowler]

Property puchased on 13 May 2002 paid for by the claimants brother.
This madke the claimant thelegeal owner at the time and the brother had a beneficial interest because he stumped up th cash.

The property is freehold and there was no mortgage outstanding as it was paid for in cash. The intention was that the claimant paid back the money
to his brother at some time. Initially payments were to be interest and then at a later date the capital would be repaid. The claimant does not have records of the interest payments he made. In March 2004 a deed of trust was drawn up stating:
The owner shall be entitled to occupy the property rent free for as long as he shall wish and that the power of sale shall not be exercised without his consent.

Then in October 2005 owner ship of the property was transferred to the brother who stumped up the cash to purchase the property. A tenenacy agreement was drawn in in Jan 2006 The former owner then claimed benefit in Jan 2006

I think that we could say we could not treat him as being liable to make payments based on the existence of the deed of trust. This clearly showed the intention of both parties that the claimant should be able to live in the property for as long as he wished.

It also seems that he did not have to relinquish ownership of the property
to remain in it. So even if Reg 8 does not apply, certainly Reg 9 1(h) does.

Any opinions please before I send this to Tribunal Service.

As I see it: the fact tht a deed of trust existed saying the claimint could

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