Non-commercial tenancy?

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  • #23030
    hbanana1
    Participant

    I have a situation where Mrs asked her son (who lives in another area) to take out a tenancy, for a property for her and her other children, in solely his name as the landlord would not accept anyone on HB. Mrs and her other children are living at this property and son (whose name is on the tenancy) is renting in another area. Mrs is applying for HB on this property to pay money to son for rent.

    On principle I can see that this is a sublet, with the son treated as the LL. However can you please advise if this is a tenancy is on a commercial basis? As I cannot see the son taking any kind of action against the mother for rent arrears etc..

    #10648
    Nicky
    Participant

    Shoot me if I’m wrong (hey it has been known) but from my dim and distant IRRV Law of Property days I seem to recall that where you have a person sub letting, then the head lessor (the original landlord) would be able to sue the sub lessee for arrears of rent. It was a long time ago mind. 🙄

    #10649
    Ozzie
    Participant

    Hi Banana
    I would say that the fact that the son is subletting to the clmt, even though unlawful, would still mean that a rent liability existed. However, in this case because it is her son who is subletting and he would have no intention of subletting to anybody else and took on the property for her sole use and gains nothing from the agreement and would probably have no intention of kicking her out if she failed to pay the rent, that you could say it is non commercial and under 2006 reg 9 we could refuse it.
    Hope that helps
    Jen

    #10650
    petedavies
    Participant

    Not sure that there would need to be a commercial agreement between mother and son.

    There was a comms decision on something broadly similar and will post again if I can remember it but, essentially, you need to look at the overall agreement. Despite the middleman there is, on the face of it, still a commercial agreement in substance.

    For anyone who has a better memory then me (ie everyone), the case I am thinking of: A property was let to a charity who, in turn let it to a Yemeni (I think) couple with the LL’s knowledge. The arrangement served a dual purpose (a) The LL’s rental income was protected and (b) The couple were housed in close proximity to a number of other recently arrived Yemeni nationals.

    Whilst there are some differences – LL’s knowledge and familay angle I do think the basic principles are the same.

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