Letting a Tenants in Common Property

[IrishLass]

Property owned as Tenants in Common by two people - 50% shares. One owner passed away and their share passed to the Executors of the estate. Can the surviving owner rent out the unoccupied property.

[AndrewDod]

There is no stipulation that all owners are named on a tenancy agreement. However unless there is some dispute I would name both the survivor and the Estate of xxx as landlords. The executors are usually free to manage property appropriately during probate. Rents earned would be (eventually) taxed as if earned by the beneficiaries (not I think add to the size of the estate).

[hybrice]

You'd need to check with a solicitor. I am aware that joint tenants both own the house fully and can independently make decisions for the Property. Though I'm unsure if that applies to tenants in common as it's a share-based system, with 50:50 I'd imagine it needs agreement from both parties.

[AndrewDod]

There are NO laws surrounding how joint tenants (whether plain joint or TiC) make their decisions. There might be a Trust deed in place which might say how decisions have to be made, or some partnership agreement - but short of that nothing at all. By default the only decision that requires joint agreement is selling the place.

[hybrice]

There is no legislation, there is however, case law - Burton v Camden LBC [2000] 2 AC 399, HL per Lord Millett + Wright v Gibbons [1949] 78 CLR 313.

Joint tenants are equally and "wholly entitled on the whole to the estate", tenants in common do not have the same benefits.

[jpkeates]

There are NO laws surrounding how joint tenants (whether plain joint or TiC) make their decisions.

There may be no laws (I don't know either way), but the issue has been legally settled for ages.
In English law, every owner has a veto over what is done with what they own.
So if you're a joint tenant, you get a veto on everything, if you're a tenant in common, you get a veto on most things (but not who inherits or buys the other person's share, for example).

I think that Scottish law allows a majority to prevail in a joint tenancy- but that's not something I'm 100% sure of.

[AndrewDod]

I don't think a "veto" is a decision.
Party 1 says: I refuse to allow this property to be occupied by a tenant
Party 2 says: I refuse to allow this property to remain vacant, and unheated while I pay all of the council tax and service charges and it falls into disrepair

At the end of the day, a court adjudicating this situation (forgetting the possibility of vulnerable occupants) is not going enforce the wishes of either party in practice (because there is no legal basis for them to do that). The only thing they will do is to compel a sale (if one party wishes).

[jpkeates]

I don't think a "veto" is a decision.
Party 1 says: I refuse to allow this property to be occupied by a tenant
Part 2 says: I refuse to allow this property to remain vacant, and unheated while I pay all of the council tax and service charges and it falls into disrepair

That would simply be a stalemate then.
I agree it's probably more a means to an outcome than a "decision".

At the end of the day, a court adjudicating this situation (forgetting the possibility of vulnerable occupants) is not going enforce the wishes of either party in practice (because there is no legal basis for them to do that). The only thing they will do is to compel a sale (if one party wishes).

I'm not sure how possible that would be today - people's pesky Human Rights get in the way.

[AndrewDod]

That would simply be a stalemate then.
I'm not sure how possible that would be today - people's pesky Human Rights get in the way.

Courts enforce sales all the time. Been there and done that - twice. Where there is a majority ownership they will pretty much always do what the majority beneficial owner wants (regardless of any "veto") by a minority. They are definitely not going to uphold a veto by an owner ("I veto that this property is sold/tenanted/painted/repaired/has its taxes paid").

If there is a minority owner and that minority tries to impose some sort of veto, they might stop short of allowing the minor owner to enforce a sale against the wishes of the majority but (for example per s15(3) TOLATA 1996) have regard to "the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in property subject to the trust or (in case of dispute) of the majority (according to the value of their combined interests)" - that's not a veto being upheld in any way.

[hybrice]

I don't think a "veto" is a decision.
Party 1 says: I refuse to allow this property to be occupied by a tenant
Part 2 says: I refuse to allow this property to remain vacant, and unheated while I pay all of the council tax and service charges and it falls into disrepair

At the end of the day, a court adjudicating this situation (forgetting the possibility of vulnerable occupants) is not going enforce the wishes of either party in practice (because there is no legal basis for them to do that). The only thing they will do is to compel a sale (if one party wishes).

HMmm not true, under the Trusts of Land and Appointment of Trustees Act 1996 they can do much more than compelling a sale (that's only Section 14/15), they can split or order profits paid, transfer equity, shares or ownership, amongst other things.

The issue isn't how legal it is, it's the logistical minefield involved with proceeding without the express permission of one party. You CAN do whatever you like, install a tenant without the knowledge or agreement of the other party, no laws have been broken - but you'd open yourself up to a massive amount of legal liability. Example - One person installs a tenant, the other tenant in common then wants their share of profits + to sell the property, you'd be caught in a massive amount of litigation, eviction, orders for sale, money orders, where you'd be almost wholly liable.

Get permission, or don't bother, in my opinion...

[AndrewDod]

HMmm not true, under the Trusts of Land and Appointment of Trustees Act 1996 they can do much more than compelling a sale (that's only Section 14/15), they can split or order profits paid, transfer equity, shares or ownership, amongst other things.

Yes they can, but in practice cases where courts get involved in dictating how tenants in common or joint tenants actually manage the thing they own are as rare and hen's teeth - barring an actual or clearly implied partnership agreement or a trust which dictates the terms, or where children (etc) are involved.

Which takes the thread full circle.

In reality "express permission" is often not forthcoming and is not required (as you say). For example I have one property which is owned in 10% share by a third party. They never respond to any correspondence. I simply do what I want and convey a % of rents I deem reasonable. They remain silent. If I had to get express permission, it would be permission to do what exactly?? Because embarking on a tenancy agreement is a positive act, but so is paying council tax or service charges on an empty property a positive act.

Express permission is not the converse of express refusal.