PDA

View Full Version : Failed Succession Claim - Trespass Hearing - HELP!



D Stanley
26-09-2011, 13:30 PM
Hi, I'd be very grateful if anyone can give me some urgent advice...

To outline my situation -

I live in a H.A. flat. My mother was the sole tenant, with an Assured tenancy. I moved in with her in 2005 as her carer. Mom died in June last year. Upon her death I applied for 'discretionary' succession. The H.A. refused, I believe unreasonably. I have documentary evidence to support my claim, including a letter of reference acknowledging my residence at the address, from the Housing Officer.

The H.A. has threatened to change the locks several times & has issued me with a NTQ twice. They have now issued a claim for Trespass. At the initial hearing, Judge looked at my defence bundle & ordered a 2 hour hearing at the beginning of October. Unfortunately, he seemed a little confused re: Secure/Assured tenancies & mentioned that there is relevant case law that includes interpretations of 'family members' & 'normally residing at', etc.

I am aware that the succession rights in an Assured tenancy do not apply to family members other than a 'spouse or cohabitee', but they do in a Secure tenancy. So I'm worried that Judge has this issue confused & was considering my rights under a Secure tenancy.

Either way, the fact is that I do not have any statutory or contractual right to succession. My only claim is for 'discretionary
succession' to be granted by the H.A.

My defence centres on the fact that the H.A. have not considered my application fairly & that they have disregarded strong evidence that I live & have lived at the property for years. I believe that the H.A. has been constructive in dismissing my claim for succession & has not excercised its dicretion responsibly.

So my main question is simple -

Is this a viable defence?
i.e. Even if I am able to show evidence & convince Judge that the H.A. has treated me unfairly, does the court have the power to influence the H.A. to change its decision or reconsider my claim? Or is it bound by the fact that, at law, I am a trespasser as I have no tenancy & no statutory/contractual right to succession?

I'd be really grateful if anyone can advise me on this urgently as my deadline to file my defence is this Wednesday.

I also have another point on which I am considering defending the claim, if anyone has time I'd be grateful if you could also consider this -

The tenancy states that it shall terminate upon the death of the tenant. But the H.A. did not terminate the tenancy on my mother's death, they wrote to me on several occassions to say that they would be closing the tenancy off 'soon' & have sent me up to date rent statements. Does this mean that the tenancy is/was still in existence after my mother's death, and if so did I inherit the tenancy? Would this make it a 'devolved tenancy' and would that mean that the H.A. should have issued a claim under Ground 7, Shedule 2 of the Housing Act?

As this is a Trespass claim I have no access to legal aid & am unable to get advice from Shelter etc. so any advice will be received with heartfelt thanks. if you do think I have a defence, any pointers to the relevant case law would be really helpful to me.

Thank you for taking the time to read this even if you cannot help.

Paul Gibbs
26-09-2011, 14:53 PM
The judge may have confused himself. Usually for Assured Tenancies there is no right of succession unless you are a spouse, co-habitee, or civil partner.

You should check the terms of the lease as sometimes a housing association can include terms for succession.

It would be wise to try to obtain a copy of the policy the HA has for discretionary succession. If they refuse to disclose this then you may need to make a freedom of information request.

The HA may have different responsibilities to you compared to a local authority.

Have they sent you a rent demand (in your name)? Have you paid any rent directly to HA?

D Stanley
26-09-2011, 15:13 PM
Thank you so much for the reply.

Yes I am a bit concerned that Judge confused the two types of tenancy. Althought I am clear that this is an assured tenncy & as such I have no statutory right to succeed. There are no contractual provisions either.

I have asked the HA for a copy of their policy but they say they treat cases on an individual basis.

I'm representing myself & I'm prepared to give my defence a run as I do have a lot of documentary evidence etc.

My real quandary is about the court's power in a trespass case. I know that possessions under the housing act allow the court a lot of sway over what the HA can & can't do, but is it different in a trespass hearing. Judge already said that 'to the letter of the law' I am a trespasser, yet he allowed me a 2 hour hearing to defend myself. So my real question is -

If Judge decides that the HA have acted unfairly & that my evidence is valid, can he MAKE the HA change their mind or is he duty bound to act upon 'the letter of the law'?

Again, I'm very grateful for your time, especially as I'm technically on the 'wrong side' for this forum!

jta
26-09-2011, 15:21 PM
Again, I'm very grateful for your time, especially as I'm technically on the 'wrong side' for this forum!

No you are not. This forum gives impartial advice to tenants and landlords alike.

theartfullodger
26-09-2011, 15:24 PM
Welcome to LLZ.

Strongly suggest you 'phone Shelter 0808 800 4444 and ask their advice. This is a free advice line but they are an overloaded charity so expect a wait.

Best of luck.

D Stanley
26-09-2011, 15:37 PM
Thanks for the advice. The problem is that Shelter operate a 'catch 22' system for people in my position. The people at my local shelter office are aware that there's an issue with who they can help & who not but their hands are tied.

It works like this - you phone the advice line, then as its a legal matter they ask you to go to your local office. At the local office they say 'sorry you're self employed, unless you have up-to-date audited accounts we can't see you. But you can call the advice line!' Obviously even if I had audited accounts they'd only be 'up-to-date' in April! I did mention that I may become homeless & they say 'come back then'.

theartfullodger
26-09-2011, 16:17 PM
Try CaB & see if they are more flexible??

It's not so much Shelter operating a catch22 but the legal aid system: I understand that Shelter (and solicitors...) will take legal aid cases and fight them, but no legal aid, no funding.... Sorry: Do you have no funds to go see solicitor??

Also, if local Shelter office won't take your case can you see what specific advice you can get over 'phone from 0808 number???

Suspect the issue(s) may be due to mum's tenancy being Assured (rather than, say, Secure..) - see..


Best wishes

45002
26-09-2011, 16:20 PM
Hello D Stanley

Out of interest,how long had you Mother been living at the flat ?

Have a read of this as well

http://england.shelter.org.uk/get_advice/families_and_relationships/when_someone_dies/if_a_tenant_dies/succession_rights#2


Succeeding to a housing association tenancy

In most cases you will be able to succeed to a housing association tenancy if:

you are the spouse, registered civil partner or cohabitee of the tenant, and
the property is your only or main home and
there has been no previous succession.

It is not normally possible for other family members (eg children) to take over a housing association tenancy by succession unless:

the tenancy is a secure housing association tenancy
the other family member had been living in the home for at least 12 months before the tenant's death, and
there is no surviving spouse or partner who is eligible to succeed.

D Stanley
26-09-2011, 17:45 PM
It is an assured tenancy & I have no statutory or contractual right to succession.

My question is - can the court take my evidence into account & reverse the HA's decision or as it bound to comply with the letter of the law? I guess this all depends on what case law there is. Does anyone have any information on relevant case law?

45002
26-09-2011, 17:57 PM
It is an assured tenancy & I have no statutory or contractual right to succession.

My question is - can the court take my evidence into account & reverse the HA's decision or as it bound to comply with the letter of the law? I guess this all depends on what case law there is. Does anyone have any information on relevant case law?

Who told you it's a Assured tenancy ?

May I ask again,how long had your Mother been living at that address,when did she move in ?

PaulF
26-09-2011, 17:57 PM
There will only be case law if there has been a similar case heard in the High Court which I very much doubt, but that's
not to say it hasn't happened before.

A judge could rule either way and your best option would be to put all the evidence you have concerning your occupation at the property, especially if the HA has been accepting rent from you since your mother died. I expect the judge will have taken legal advice himself since the first hearing as he appeared to be a little remiss when it came to understanding the lawful situation.

It's a shame you are unable to afford legal advice because I feel that could be very much in your favour. I wish you all the best and I'm sure other posters hope you are successful.

Please let us know.

45002
26-09-2011, 18:08 PM
There will only be case law if there has been a similar case heard in the High Court which I very much doubt, but that's
not to say it hasn't happened before.

A judge could rule either way and your best option would be to put all the evidence you have concerning your occupation at the property, especially if the HA has been accepting rent from you since your mother died. I expect the judge will have taken legal advice himself since the first hearing as he appeared to be a little remiss when it came to understanding the lawful situation.

It's a shame you are unable to afford legal advice because I feel that could be very much in your favour. I wish you all the best and I'm sure other posters hope you are successful.

Please let us know.

I think it really needs to be established 1st.

Who told D Stanley it was a Assured Tenancy and how long had his mother been living at that Address ?

Legal aid is still available for people who face losing there home..

PaulF
26-09-2011, 18:29 PM
Legal aid is still available for people who face loosing there home..Are you sure? (Or even losing their home!)

D Stanley
27-09-2011, 01:39 AM
I have a copy of my mom's tenancy which began in 2000. It says Assured tenancy on it & I believe that to be correct.

theartfullodger
27-09-2011, 06:22 AM
As asked more than once, when did mum move in to this property??

Paul Gibbs
27-09-2011, 07:55 AM
I would point out I have not looked into this in detail.

Your claim is that the HA have wrongly refused you discretionary succession rights.

If you have an argument that they have not followed their procedures, or otherwise ought to have allowed you to succeed to the tenancy I do not believe (strictly speaking) it is a defence to the possession claim.

It may give rise to a public law claim against the HA, however, that is a separate claim.

I suspect it is similar to LA decisions on homelessness cases. If the LA find a tenant to be intentionally homeless and T wishes to challenge that decision they must issue a court claim on that discrete issue. If the claim is successful then LA must carry out a fresh review.

The fact that a court claim is pending (regarding the public law point) can often enable a judge to delay the eviction case

I suspect that the court is not going to be able to force the HA to reconsider your request for discretionary succession, due to the fact it is discretionary. On homelessness cases the LA is under a statutory obligation.

You may have some argument if you can show some form of discrimination, or that there is evidence from past cases that HA would almost always allow people in your case to succeed, but have refused in your case.

In my view it is a difficult claim.

D Stanley
27-09-2011, 14:27 PM
As asked more than once, when did mum move in to this property??

May 2000. I am certain it is an Assured tenancy

D Stanley
27-09-2011, 14:28 PM
I would point out I have not looked into this in detail.

Your claim is that the HA have wrongly refused you discretionary succession rights.

If you have an argument that they have not followed their procedures, or otherwise ought to have allowed you to succeed to the tenancy I do not believe (strictly speaking) it is a defence to the possession claim.

It may give rise to a public law claim against the HA, however, that is a separate claim.

I suspect it is similar to LA decisions on homelessness cases. If the LA find a tenant to be intentionally homeless and T wishes to challenge that decision they must issue a court claim on that discrete issue. If the claim is successful then LA must carry out a fresh review.

The fact that a court claim is pending (regarding the public law point) can often enable a judge to delay the eviction case

I suspect that the court is not going to be able to force the HA to reconsider your request for discretionary succession, due to the fact it is discretionary. On homelessness cases the LA is under a statutory obligation.

You may have some argument if you can show some form of discrimination, or that there is evidence from past cases that HA would almost always allow people in your case to succeed, but have refused in your case.

In my view it is a difficult claim.

Thank you very much, I am very grateful for your assistance

D Stanley
27-09-2011, 14:29 PM
There will only be case law if there has been a similar case heard in the High Court which I very much doubt, but that's
not to say it hasn't happened before.

A judge could rule either way and your best option would be to put all the evidence you have concerning your occupation at the property, especially if the HA has been accepting rent from you since your mother died. I expect the judge will have taken legal advice himself since the first hearing as he appeared to be a little remiss when it came to understanding the lawful situation.

It's a shame you are unable to afford legal advice because I feel that could be very much in your favour. I wish you all the best and I'm sure other posters hope you are successful.

Please let us know.

Thank you very much, your assistance is gratefully received

D Stanley
28-09-2011, 10:57 AM
As yet I've been unable to find anyone to formally advise me on a pro bono basis, despite asking 16 firms. So although I will keep trying to find a specialist, for now I'll have to crack on with defending myself.

I've found some very interesting case law & notes on the Nic Madge website, which answer a lot of my questions (as well as the helpful resposes I've received on forums), so I feel I have something to work on now & have been able to get my witness statements ready.

I just have a two issues re procedure on which I hope someone can give me a pointer.

This morning I received the Order from the last hearing.

It reads "The parties shall file & serve witness statements by 4pm on 27 September 2011."

Yesterday! I put it down to nerves but in court I wrote down 28th as the deadline!

I have them ready now & obviously I intend to include a covering letter explaining my error. Does anyone think this will cause me a problem? (The next hearing isn't until 21st November).

And finally, the Order just states 'witness statements', my documentary evidence will be included in that but am I also expected to outline my arguments & indicate the case law to which I intend to refer in court? Or will I just use that when I need it?

Thank you for taking the time to discuss this with me.

westminster
28-09-2011, 13:10 PM
The H.A. has threatened to change the locks several times & has issued me with a NTQ twice. They have now issued a claim for Trespass. At the initial hearing, Judge looked at my defence bundle & ordered a 2 hour hearing at the beginning of October. Unfortunately, he seemed a little confused re: Secure/Assured tenancies & mentioned that there is relevant case law that includes interpretations of 'family members' & 'normally residing at', etc. ......

.....The tenancy states that it shall terminate upon the death of the tenant. But the H.A. did not terminate the tenancy on my mother's death, they wrote to me on several occassions to say that they would be closing the tenancy off 'soon' & have sent me up to date rent statements. Does this mean that the tenancy is/was still in existence after my mother's death, and if so did I inherit the tenancy? Would this make it a 'devolved tenancy' and would that mean that the H.A. should have issued a claim under Ground 7, Schedule 2 of the Housing Act?
A tenancy doesn't just end with the death of the tenant. If the executor(s) of the deceased tenant does not agree a surrender with the landlord, then the landlord must bring possession proceedings (under Ground 7, as you say - albeit HA are out of time as it's been more than 12 months since your mother died).

Therefore, if the tenancy hasn't legally ended, then I don't see how you can be a trespasser as you were living there at the invitation of the deceased tenant.

Have you tried the Tenancy Relations Officer at the local council? They help with cases of unlawful eviction, and it seems to me that the HA may be attempting to unlawfully evict you (e.g. not using the proper procedure, threatening to change locks).

D Stanley
28-09-2011, 17:55 PM
A tenancy doesn't just end with the death of the tenant. If the executor(s) of the deceased tenant does not agree a surrender with the landlord, then the landlord must bring possession proceedings (under Ground 7, as you say - albeit HA are out of time as it's been more than 12 months since your mother died).

Therefore, if the tenancy hasn't legally ended, then I don't see how you can be a trespasser as you were living there at the invitation of the deceased tenant.

Have you tried the Tenancy Relations Officer at the local council? They help with cases of unlawful eviction, and it seems to me that the HA may be attempting to unlawfully evict you (e.g. not using the proper procedure, threatening to change locks).

why thank you, this Ground 7 thing has been bugging me. Do you know what would be the HA's options if it is proved that they should have used Ground 7 but as you say they're out of time? Is that why they're attempting to use Trespass?

Chemistry
28-09-2011, 20:30 PM
There are a number of issues here;
1. what does the T/A state about succession rights and assured tnts. I am confident that many HA's have embraced tenancy rights to their assured tnts that are are akin to secure rights (helps them get funding). So read the T/A.

2. If you are now deemed to be an authorised occupier?;did the HA serve notice to the Treasury division to dtermine the tenancy?

3.Sorry to ask, but what was the date that you mother departed?; when did you notify the HA; has 12 months expired?

4. After all has been said; if you win; if it is a family sized accommodation that your mother rented you will only be entitled to a 1 bed ( which I think is fair)

D Stanley
28-09-2011, 22:57 PM
There are a number of issues here;
1. what does the T/A state about succession rights and assured tnts. I am confident that many HA's have embraced tenancy rights to their assured tnts that are are akin to secure rights (helps them get funding). So read the T/A.

2. If you are now deemed to be an authorised occupier?;did the HA serve notice to the Treasury division to dtermine the tenancy?

3.Sorry to ask, but what was the date that you mother departed?; when did you notify the HA; has 12 months expired?

4. After all has been said; if you win; if it is a family sized accommodation that your mother rented you will only be entitled to a 1 bed ( which I think is fair)

Thanks for your input. As far as I'm aware many HA assured tenancies do have a provision which gives assured tenants the same succession rights as secure tenants (i.e. family members other than spouse can also succeed), 'contractual' right to succession. But these are mainly used for properties that are handed over to HAs from a LHA. My mom's tenancy doesn't include these contractual rights of succession. The statutory rights in an assured tenancy only apply to a spouce/cohabitee.

Mom died on 29th June 2010. The HA were told straight away. So 12 months has expired. This would mean the HA were out of time for a Ground 7 claim.

Actually it's a 1 bed flat! So if anything my son & I are now over occupying. Although that was the same situation with my mother & I, and the HA were aware for years.

At the moment the HA consider me to be a trespasser, so obviously not an authorised occupier. Would you clarify what you mean by 'serving notice to the Treasury'? I'm not aware if this has happened. It's not mentioned in the HA's claim.

Thanks again

westminster
29-09-2011, 10:08 AM
Can you give us more details of the last tenancy contract your mother signed. What date did the fixed term commence and what was the length of the term?

Who was the notice to quit addressed to, and what date was it served?

Has any rent been paid to the HA since your mother's death?

Paul Gibbs
29-09-2011, 17:53 PM
Post your witness statement now, with the documents exhibited within it. In the covering letter point out your misunderstanding.

Check that the order simply states exchange of witness statements by 4.00 on 27 September 2011. If the order has a statement along the lines of 'parties shall only have permission to rely upon statements served in accordance with paragraph x above'. If it has such a provision (which is unlikely) then you will have to make an application for relief from sanctions/permission to rely.

D Stanley
29-09-2011, 18:38 PM
Post your witness statement now, with the documents exhibited within it. In the covering letter point out your misunderstanding.

Check that the order simply states exchange of witness statements by 4.00 on 27 September 2011. If the order has a statement along the lines of 'parties shall only have permission to rely upon statements served in accordance with paragraph x above'. If it has such a provision (which is unlikely) then you will have to make an application for relief from sanctions/permission to rely.

Again, thank you sincerely. I have any such delivered the witness statements. And just to confirm, the Order doesn't have any such statements, just 'Witness statements shall be exchanged' etc.

So I hope I can assume that if I were expected to file particulars of defence or skeleton arguments I would have been told in court or it would be stated in the order.

45002
29-09-2011, 20:03 PM
Please could you answer these question

http://www.landlordzone.co.uk/forums/showthread.php?41667-Failed-Succession-Claim-Trespass-Hearing-HELP!&p=334097#post334097

Chemistry
29-09-2011, 21:38 PM
When a tenant dies it should be standard practice to send a copy of the NTQ to the family division of the ...( i can't recall... somewhere in Vauxhall). I will look into this; but my feelings are that 12 months have elapsed and therefore, you are entitled to the tenancy. Although, pls also check that there has not been a succession already (ie: your father or joint tenancy).

westminster
29-09-2011, 22:12 PM
Please could you answer these question

http://www.landlordzone.co.uk/forums/showthread.php?41667-Failed-Succession-Claim-Trespass-Hearing-HELP!&p=334097#post334097 (http://www.landlordzone.co.uk/forums/showthread.php?41667-Failed-Succession-Claim-Trespass-Hearing-HELP%21&p=334097#post334097)
Yes, it'd be helpful if OP were to answer these questions.

D Stanley
30-09-2011, 12:33 PM
Yes, it'd be helpful if OP were to answer these questions.

Sorry for the delay in replying.

It's an assured weekly tenancy, beginning May 2000.

NTQ was served on 'The personal representative of [mom's name]'

It was served on me & also the Public Trustee.

No rent has been accepted although I have asked to pay rent many times, they ignore my emails. They do keep sending rent statements in mom's name, with the rent accruing weekly.

There has been no prior succession.

Chemistry
05-10-2011, 17:33 PM
You have mentioned that your mother’s property was transferred from the LHA ( I presume you mean the council – then the tenancy is secure). If NOT, under the performance standards by which HA’s work by they would have incorporated succession rights to non family members (except same sex partnerships); however, this aspect may have changed.

However, the judge will want to refer to the T/A to determine whether or not you are a(discretionary ) successor. Furthermore, the LL is only entitled to serve a NTQ if there is not a person in occupation who has not succeeded or inherited the tenancy under your mother’s will or intestacy.

Have you taken out probate or letters of administration on the landlord?


For the record:
NTQ’s should be addressed to the personal representatives of the deceased tenant at the premises and a copy of said NTQ registered with the Public Trustee ( a fee is payable ; in my day it was approx £20.00).
The interesting point here, is the lapse of the 12 month period of the death of your mother. I can’t see how you cannot inherit the tenancy – perhaps the legal minded may be able to offer advice