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yursaduian
02-03-2007, 08:32 AM
Can anyone help please?

I have an elderly friend who owns two properties. She lives in one and her son - who she no longer communicates with - lives in the other (she has even removed him from her Will)

He has lived in the property for some time without any form of agreement and although she does not wish him to move, she does realise that the tenancy should be formalised with a tenancy agreement. However, when this idea was presented to the son, he absolutely disagreed and threatened to fight it through solicitors.

The question is, how does they each stand legally?

Does he have some sort of "unwritten agreement" as he has lived there for some years and can she "force" an agreement on him whether he liked it or not but more importantly, if she were to die and the property has been left to someone else, would they be able to remove him from what is after all his home?

Any pointers would be much appreciated

Cheers

jeffrey
02-03-2007, 09:23 AM
As mentioned in other forum, verify who has paid what.
Occupant cannot be treated as trespasser if (a) rent paid and received or (b) he pays no rent but entered by permission- in latter case, permission can be revoked, of course.
A. If rent, and occupation began between Feb. 1989 and Jan. 1997, T will be Standard Assured. If thereafter, T will be Assured Shorthold.
B. If no rent, he should therefore be given choice of moving out or signing Agreement. This will not be under HA1988 because Act inapplicable if no rent.

yursaduian
02-03-2007, 09:38 AM
Corinne, thanks for the reply

I now have a little more info in that the son has apparently lived there for 30+ years rent free.

What worried me is the prospect of him turning up some sort of "squatters rights" legislation that allowed him to remain there. Is that possible?

The other question is of course what would happen if she died? Can the estate evict him as it stands now?

While typing this I have just seen the response from JEFFREY (thanks) and so really I think the point now is exactly how difficult can the son be?

From what has been said (please correct me if I'm wrong), she is still the legal owner and entitled to an agreement with her tenant (even if no rent is paid) and she is also entitled to evict him. This is obviously a last resort and she has already stated that she doesn't wish that to happen but what she really wants to hear is "Yes you can evict if necessary"

She is obviously hoping that armed with that authority, the son will come accept some sort of agreement. Yes?

Thanks again to all

Bel
02-03-2007, 11:24 AM
Corinne, thanks for the reply

I now have a little more info in that the son has apparently lived there for 30+ years rent free.

What worried me is the prospect of him turning up some sort of "squatters rights" legislation that allowed him to remain there. Is that possible?

The other question is of course what would happen if she died? Can the estate evict him as it stands now?

While typing this I have just seen the response from JEFFREY (thanks) and so really I think the point now is exactly how difficult can the son be?

From what has been said (please correct me if I'm wrong), she is still the legal owner and entitled to an agreement with her tenant (even if no rent is paid) and she is also entitled to evict him. This is obviously a last resort and she has already stated that she doesn't wish that to happen but what she really wants to hear is "Yes you can evict if necessary"

She is obviously hoping that armed with that authority, the son will come accept some sort of agreement. Yes?

Thanks again to all

I can understand that she needs to know how to regain possession if she should decide to; and for the estate to be able to repossess in the future. For this she needs legal advice to set her mind at rest that this is possible. The solicitor can set up framework that could be followed in the event that repossession is required for whatever reason. Hopefully this will set her mind at rest.

It may be that doing nothing regarding the formal agreement is a valid option, and should be seriously considered. In my opinion there is probably not much point in forcing any formal agreement unless the lady wants to ammend the terms; eg charge rent or repossess in the near future. If she only wishes to maintain the status quo, forcing an agreement might only have the "benefit" of showing the son that she has control over him, and achieve no other purpose, apart from making her solicitor a little richer if the son gets a legal fight going. Will it be worth the upset? A greater understanding of all the legal issues will help her make the right choice.

A tenant of 30 years would definately have security of tenure; but of course. he may not be a tenant.

It would be interesting to update members about legal advice received.

Paragon
02-03-2007, 11:49 AM
Bel, good post!

jeffrey
02-03-2007, 11:49 AM
If rent free, are we sure that he is a tenant? Non-communication between O and him might lead to original permission being revoked impliedly, which could make him a tolerated trespasser. Suppose that he claimed to be in adverse possession, for instance? Doing nothing against him then seems less appealing.
Much better if O can agree/complete Tenancy Agreement with him, at no (or nominal) rent.

Paragon
02-03-2007, 11:57 AM
I have the same question as Jeffrey re: if rent free, is he really a tenant?
Something sticks in my mind about the requirement for some sort of remuneration, but not sure where it came from.

Beeber
02-03-2007, 12:21 PM
According to the Shelter website - my fave site for info - a regulated tenant
has stronger rights against eviction than most other private tenants and they are likely to be in the category if they moved in before 15 January 1989 BUT some types of tenancy cannot be regulated tenancies and these include tenancies where no (or a very low) rent is paid.

http://england.shelter.org.uk/advice/advice-2936.cfm

Given the attitude of the 'tenant' and the family breakdown, I guess an appointment with a housing solicitor may be in order to get his rights (or lack of them) established and commence eviction proceedings that way.

bill65
02-03-2007, 14:07 PM
I think this person has already taken advice on this matter possibly when making out a will.

Any person who occupies land is a tenant, even the Queen is a tenant of the crown

The issue here is what estate in land does the son enjoy. There are two possibilities,one ipso facto by the son refusing to sign an agreement a tenancy at his will is in place. Two by operation of law a life estate has been created which would imply the mother holds the estate in trust for the son and on her death the fee simple would pass to the son. By making an agreement this would extinguish the trust. But without all the facts it is difficult to apply the law. Both should consult a solicitor and most probably take counsel's opinion. .

attilathelandlord
03-03-2007, 08:36 AM
If he doesn't have any kind of agreement, written or oral and has never, ever been asked to pay rent then he is not a tenant pure and simple.

He would at most have a bare licence:

"A bare licence is one granted without valuable consideration and where there is no intention to create legal relations. It can be revoked at any time. A contractual licence is a formal agreement to occupy premises in return for regular payments. It will give rise to obligations similar to a tenancy."

I was recently involved in a very similar case and possession was awarded to the family member seeking to remove his brother from a property.

Paragon
03-03-2007, 10:28 AM
If he doesn't have any kind of agreement, written or oral and has never, ever been asked to pay rent then he is not a tenant pure and simple.

He would at most have a bare licence:

"A bare licence is one granted without valuable consideration and where there is no intention to create legal relations. It can be revoked at any time. A contractual licence is a formal agreement to occupy premises in return for regular payments. It will give rise to obligations similar to a tenancy."

I was recently involved in a very similar case and possession was awarded to the family member seeking to remove his brother from a property.

Good one!!

bill65
03-03-2007, 10:32 AM
Without knowing all the facts it is not possible to say what estate in land( if any) the son has,after 30yrs of occupation the son might have spent a considerable amount on repairs and improvements, which would give rise to rights over the land.
This seems to be one of those rare occasions when a tenancy at will has been created.

A tenancy at will is a leasehold such that either the landlord or the tenant may terminate the tenancy at any time by giving reasonable notice. It usually occurs in the absence of a lease, or where the tenancy is not for consideration. Under the modern common law, tenancy at will is very rare, partly because it can only come about if the parties expressly agree that the tenancy is at will and not for rent. However, tenancy at will is common where a family member is allowed to live in the home (a nominal consideration may be required) without any formal arrangements.

If a lease exists at the sole discretion of the landlord, it grants the tenant by operation of law a reciprocal right to terminate the lease at will. However, a lease that explicitly exists at the will of the tenant (e.g. "for as long as the tenant desires to live on this land, which seems to be the case here") does not imply that the landlord may terminate the lease, even for cause; rather, such language may be interpreted as granting the tenant a life estate or even a fee simple.

P.S as i have said anyone who occupies land is a tenant until such time as it can be proved otherwise.

bill65
04-03-2007, 17:37 PM
Since this might be of interest to some people i have tried to explain what a tenancy at will in this case might imply in equity.

What you are dealing with is a “fee simple absolute in possession” what this means is as follows:

1)a “fee” means the estate is inheritable ( the interest runs in the blood)
2) simple means there are no condition attached to the fee.
3)Absolute means the fee can be disposed of inter vivos.
4)Possession means that the land is in actual possession or a future right to it.
5)Here is the mothers position on this matter.

The mother is not in actual “possession” of the land nor does she have a reversion (no rent being payed). One condition when making a will is that you must have “possession” of the estate before you can will it to anyone. In this case the son is in actual possession of the land or, to express the matter in an other way, he is an heir in possession inter vivos and therefore cannot be written out by will of the mother.

By making an inter vivos tenancy agreement in writing( as the land is in the mother's name) this would effectively disinherit the son.

As to a brother, a brother is not an heir in the blood line he is collateral in line, the land would not automatically descend to a brother as it would to a son. So therefore the arrangement could be construed as a gift inter vivos.
As i have said this is a case for counsel to give an opinion on (when all the facts are known) But I think advice has be taken on this. Hence trying to get the son into a written agreement.

Bel
04-03-2007, 18:19 PM
Since this might be of interest to some people i have tried to explain what a tenancy at will in this case might imply in equity.

What you are dealing with is a “fee simple absolute in possession” what this means is as follows:

1)a “fee” means the estate is inheritable ( the interest runs in the blood)
2) simple means there are no condition attached to the fee.
3)Absolute means the fee can be disposed of inter vivos.
4)Possession means that the land is in actual possession or a future right to it.
5)Here is the mothers position on this matter.

The mother is not in actual “possession” of the land nor does she have a reversion (no rent being payed). One condition when making a will is that you must have “possession” of the estate before you can will it to anyone. In this case the son is in actual possession of the land or, to express the matter in an other way, he is an heir in possession inter vivos and therefore cannot be written out by will of the mother.

By making an inter vivos tenancy agreement in writing( as the land is in the mother's name) this would effectively disinherit the son.

As to a brother, a brother is not an heir in the blood line he is collateral in line, the land would not automatically descend to a brother as it would to a son. So therefore the arrangement could be construed as a gift inter vivos.
As i have said this is a case for counsel to give an opinion on (when all the facts are known) But I think advice has be taken on this. Hence trying to get the son into a written agreement.

Interesting Bill.
"inter vivos" = in life or whilst living?

homeless
04-03-2007, 19:11 PM
just out of intrest

would the son have any right to apply to the court to have rightful ownership of the property? I believe after 12 years of living somewhere without rent or a tenancy, or a court order being issued for removal, that the son would now have the right to apply to be awarded the property on the basis that its been abandoned.

bill65
04-03-2007, 19:48 PM
just out of intrest

would the son have any right to apply to the court to have rightful ownership of the property? I believe after 12 years of living somewhere without rent or a tenancy, or a court order being issued for removal, that the son would now have the right to apply to be awarded the property on the basis that its been abandoned.

No, the occupation is by agreement!( this is a bit more complicated than that)

Bel-whilst living?( inter vivos)

jeffrey
05-03-2007, 10:12 AM
"Inter vivos" means "between living people". Contrast a bequest or legacy.

Furat
05-03-2007, 15:24 PM
As she doesnt want to kick him out, then he should realise the error of his ways and beg like a whipped dog for forgiveness.