Tenant-in-common

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  • #38735
    gesin
    Participant

    My colleague recently took an appeal to FTT where the appellant is a tenant-in-common with her parents; she owns a 1% share of the property. The original decision was to turn down HB on the grounds that she is an owner [Reg 12(b)]. This was upheld by the FTT. The appellant has now been granted leave to appeal to the Upper Tribunal. The reason given is that the legal issue has not been fully dealt with.

    Does anyone know of any caselaw we can get our hands on relating to this kind of situation? Any help would be appreciated as this is an area we are not too familiar with. Also, any pointers as to what else we should be considering when preparing our response for the UT?

    Thanks in advance.

    #109421
    Kevin D
    Participant

    What is the legal issue purportedly not dealt with?

    #109430
    gesin
    Participant

    Hi Kevin

    This is the wording on the permission to appeal to the UT Decision Notice:

    “In view of the dubiety of the application of the law in this decision, I grant permission to appeal to the Administrative Appeals Chamber of the Upper Tribunal since it is at least arguable that the legal issue has not been dealt with fully.”

    This is an extract from the FTT Judge’s decision (I have taken out the name and gender of the appellant and any dates and page numbers referred to):

    “Regulations 12(2)of the Housing Benefit Regulations 2006 sets out payments in respect of which HB is not payable and Regulation 12(2)(c)refers to payments (of rent) by an owner. Regulation 2 of the 2006 Regulations defines ‘owner’ as (a) in relation to a dwelling in England and Wales, the person who, otherwise than as a mortgagee in possession, is for the time being entitled to dispose of the fee simple, whether or not with the consent of other joint owners.

    “The issue in this appeal is whether or not X is the owner of X within the meaning of the 2006 Regulations at the time of X’s claim for HB. In order to succeed with her claim for HB X has to show that they are not caught as an ‘owner’ within the Housing Benefit Regulations 2006. It is argued by the appellant’s representative in their letter of X that the restriction entered on the proprietorship register at paragraph X (p X) is sufficient to preclude the appellant from being considered an owner of the property within the meaning of Regulation 2 because their ability to dispose of the property is thus restricted. It is clear from the Court of Appeal decision in Burton v New Forest DC (reported as R(H) 7/05) that a registered title holder is able and entitled ‘to convey the ownership of a property to a third party free from all encumberances other than any appearing on the register…the fact that they would have been acting as a trustee, whether in breach or not in breach of trust is for these purposes irrelevant…Those who have to administer the housing benefit scheme would have an additional burden placed upon them if before deciding whether a person was eligible they had to make enquiries as to what lay behind the title to registered property. By virtue of what in my view is the correct construction of regulation 2(1), they simply have to examine the register and go no further.

    “In this case the issue of a trust does not actually arise because although there was a draft trust in the tribunal bundle, the appellant confirmed that it was never entered into between them and their parents. With regard to the restriction imposed in the propriertorship register, this is a standard restriction inserted when a property is registered as tenants in common. The restriction is placed on the title deeds to protect the position of other co-owners. However this does not mean that X is not within the definition of ‘owner’ of the property for the purposes of the 2006 Regulations. X is an owner, as tenant in common. They would need the consent of others to dispose of the property but they are nevertheless an owner and registered as such and therefore falls within Regulation 12(2).

    The appeal is refused.”

    I apologise that my response is so long but I didn’t want to paraphrase for fear of losing any relevant facts in translation.

    #109434
    Kevin D
    Participant

    Thanks for not para-phrasing – no apology needed. Unfortunately, the one item of case law that sprang instantly to mind was “Burton”. CH/3698/2008 (p12-13) & CH/1278/2002 probably don’t add much to it but I’ve listed them for completeness – both look at “owner” but “Burton” is, at least until now, the undoubted “daddy”.

    The only other observation that springs to mind is the relevant definition of “owner” in HBR 2 which says:

    “in relation to a dwelling in England and Wales, the person who, otherwise than as a mortgagee in possession, is for the time being entitled to dispose of the fee simple, [b]whether or not with the consent of other joint owners”[/b]; – my “bold” emphasis.

    Based on the info given so far, I’m not really sure why / how the UTJ considers there is “dubiety”. If the owner appears on the Land Reg and it is freehold, that is more or less it – unless we’re in for yet another round of reinterpretive convenience by the UT. The fact that the ownership is only 1% doesn’t alter the fact that the person is “an owner”. She doesn’t need to be “THE owner”. The only possible argument on the proportion could be that the degree of ownership should be regarded as “de minimis” to the extent it doesn’t count. Personally, I think to find on the latter would palpably contradict what is plainly said in law but my view isn’t going to be relevant.

    If any of the above helps at all, great. If not, good luck… :).

    #109435
    gesin
    Participant

    Thanks Kevin, it all helps! 🙂

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