Terms & Conditions

[Julian Hobson]

Tenant used to own prop with partner. When they split up her father bought the ex partners share and rents that part back to his daughter.

What would you do?

Non Commercial ?

[Anonymous]

Wouldn’t this come under the former owner reg? 9 (1) (h)?

[Julian Hobson]

Thought about that one but its possible to argue that she hasn’t relinquished ownership of the part that wasn’t hers, and its that part thats up for rent. I’m not totally unconvinced but I’d like to bottom it.

[gerryg]

Is she a tenant in common with her father or is she a joint tenant with him?

[Julian Hobson]

Interesting question ! As far as the HB part goes she states she owns 25% of the house (the divorce settlement) her father bought 75% from her ex partner, I presume in order that she could remain in the house.

It might be argued that they are tenants in common. I remember looking into this a long time ago in relation to Council Properties bought through right to buy by a son and rented back to the parent some years later. We have used “equity in common” to argue that the parent bought part of the property through their discount and are entitled to a share of the property.

Could we argue that these are long tenancies as their stake in the property means that their right to occupy the whole can’t be determined by the length of any supposed tenancy on the remaining part.

[Stalbansbenefits]

Doesn’t she simply fall under the definition of owner and is therefore excluded from HB by Reg 12?

It is my understanding the definition of owner was amended in order to ensure a co-owner cannot get Housing Benefit for ‘rent’ paid to other joint owners in respect of their occupation of a dwelling. Isn’t that exactly the situation you have here?

[Anonymous]

St Albans is right, I think – subject to one condition, which is that we are talking about freeholders here and the claimant’s interest is recorded at the Land Registry.

An owner has always been defined in the 1987 Regs, and now in the 2006 Regs, as a person who is entitled to dispose of the fee simple, either alone or jointly with others (with or without their consent). This definition was designed to overcome the effect of a 1986 decision under the previous HB Regs (Sedgemoor DC ex p Weadon) in which a claimant was paying rent to other joint owners – as in Julian’s case.

The definition catches both tenants in common and joint tenants as far as I can see. But it must be the freehold – that is, in plain English, what the fee simple means.

So if this claimant is registered as a freehold owner, I would say she is caught by Reg 12(2)(c)

[Julian Hobson]

Thanks for that. I must admit I didn’t look at 12(2)(c) as meaning that.

I’d always taken it to mean that mortgage payments couldn’t ever be described as rent. I take your point that because the definition of owner includes, able to dispose of the fee simple with or without the consent of co owners, that any periodic payment made by the owner (part or otherwise) in respect of that dwelling, can’t attract HB regardless of what it actually is.

[Anonymous]

The policy intention behind Reg 12(2)(c) is a bit of a puzzle. As you say, you would think it had its sights on mortgage payments, but there are two problems with that:

– mortgage payments are excluded under s130(2)(b) of the Conts and Bens Act, so there should be no need for a Reg, and
– the Reg doesn’t catch mortgage payments by a long leaseholder: those are only excluded by s130(2)(b) without any support from the Regs [Reg 12(2)(a) excludes payments to the freeholder under the lease, but not mortgage payments]

So what is Reg 12(2)(c) for? Presumably cases like this

[Author]

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