Tenancy considered Regulated in error?

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  • Tenancy considered Regulated in error?

    I have a sitting tenant. I had always considered that his was a regulated tenancy. Having spent a few days enjoying your forum, I wonder if I might have grounds to claim he is an assured tenant, but not regulated. I will quote the correspondence.

    From Tenant: 27th February 1983: My Mother and Father became your tenants at the above address in the 1930’s. My father died in 1965 and my Mother and I have been here since then. Sadly my Mother died a week ago…. Request meeting “to discuss my position”

    From Landlord: 19 March 1983: Adverting to our meeting on Thursday evening last, I am writing to confirm the agreement we reached, as under:

    That you will take over the tenancy of ….. effective from 4th April 1983 at a rent of £9.39p per week inclusive of General and Water rates.
    The rent will be regarded as being paid in advance, i.e. the rent paid on 4th April will cover the period 4th to 10th April.
    (Further paragraphs regarding repairs, etc.)
    If you feel these terms are acceptable perhaps you will kindly sign and return the attached carbon copy to me.
    ….condolences etc.

    To: (Landlord)
    I accept the terms and conditions of the tenancy as detailed above
    Date: 23 March 1983 signed……

    Does the above agreement cancel out all possible calculations of succession, etc. as there is a gap between the death of the last parent and the new agreement – also because it is dated 1983?

    The property has already been through a couple of rent reviews. I think it would be impossible for me to determine if the original tenancy was in the joint names of the husband and wife. My tenant is single and lives by himself.

    If anyone feels I do have a chance of getting the tenancy declared an assured tenancy, what sort of solicitor should I look for – I live in Canada?

  • #2
    The original tenancy certainly comes within the Rent Act 1977 and it might hinge on whether the original tenancy was in joint names. As far as successors are concerned there is a requirement for that person to have been resident at the premises for at least 2 years prior to any succession rights being exercised, and only one succession is allowed under the Rent Act 1977 - this would be if husband dies and wife takes over the tenancy; on death of the first successor the tenancy then becomes an Assured Tenancy and is subject to market rent, but the residential requirement of 2 years still stands. I may be wrong but the way I've read Section 39 Housing Act 1988 which amends the Rent Act Schedules that applied at the time appears to support this. It would be advisable to consult a specialist solicitor within England & Wales to deal with this for you considering your domicility.
    The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

    Comment


    • #3
      What sort of specialist solicitor should I look for – where can I get recommendations?
      I was almost hoping to have this idea dismissed out of hand but I know myself – I’ll have to pursue it if you think there is a chance of success.

      Comment


      • #4
        Originally posted by Paul_f View Post
        ... only one succession is allowed under the Rent Act 1977
        Hi

        In fact, two successions are permitted under the Rent Act.

        Succession happens by operation of law. I think the agreement you refer to is likely to be seen as confirmation of something that has already taken place.

        In any case, I'm not sure why the OP might think that a letting created in 1983 would be an assured tenancy? Most residential lettings by non-resident private landlords which began before 15 January 1989 will be regulated tenancies.

        Preston

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        • #5
          The landlord was resident up until 1992 when I took over the property. I was thinking that the tenancy was created in the 1930's and might have been subject to the succession rules.

          Comment


          • #6
            Originally posted by jbarberweyburn View Post
            The landlord was resident up until 1992 when I took over the property. I was thinking that the tenancy was created in the 1930's and might have been subject to the succession rules.
            Hi

            I'm not quite sure what you mean, but I think the additional information you have given here may be very significant. So:

            a) are you saying the previous landlord was a "resident landlord"? More detail would be useful.
            b) have you been resident since the previous landlord dropped out of the picture? Again, details are helpful.
            c) when did the original tenancy start and how many successions have there been since it commenced?
            d) I assume that the current tenancy commenced - and succession took place - as you have described in 1983?

            Preston

            Comment


            • #7
              Thank you for your interest - here are a few more details.
              a) My father inherited the house - at least before 1983 - not sure of the year. He gave the house to me in 1992 - I was already resident in Canada by that time and haven't spent more time in England than the occasional visit to my family over the years. I have just realised that my using the term "Resident" maybe misled you - I only meant resident to mean not non resident - not that he lived in the house with the tenant - sorry for the confusion!
              b) as above - no not resident in house or UK.
              c) I only have the letter quoted in my first post as evidence of when the tenancy started - 1930's. I am not sure if that was a tenancy in both his parent's names, or only his father. It seems his father died, later his mother and then he "took over the tenancy" - as described in 1983.

              My father had other property - none of us children have ever considered that the tenancies might not be regulated - until I started reading this wonderful forum I was in happy ignorance - well maybe not happy but at least resigned!

              Comment


              • #8
                Originally posted by jbarberweyburn View Post
                Thank you for your interest - here are a few more details.
                a) My father inherited the house - at least before 1983 - not sure of the year. He gave the house to me in 1992 - I was already resident in Canada by that time and haven't spent more time in England than the occasional visit to my family over the years. I have just realised that my using the term "Resident" maybe misled you - I only meant resident to mean not non resident - not that he lived in the house with the tenant - sorry for the confusion!
                b) as above - no not resident in house or UK.
                c) I only have the letter quoted in my first post as evidence of when the tenancy started - 1930's. I am not sure if that was a tenancy in both his parent's names, or only his father. It seems his father died, later his mother and then he "took over the tenancy" - as described in 1983.

                My father had other property - none of us children have ever considered that the tenancies might not be regulated - until I started reading this wonderful forum I was in happy ignorance - well maybe not happy but at least resigned!
                Hi, well, two successions are permitted for regulated tenancies, so whether that took place by way of survivorship (joint to sole) or ordinary succession (e.g. spouse succeeding after death of sole tenant), it would appear that only two have happened in this case. Even if the second succession (in 1983)was not in fact a succession but rather a new tenancy, then a new right to succession was also created, so that wouldn't necessarily be in your interests.

                So, in the absence of any information to the contrary, I think you have a regulated tenancy on your hands!

                Preston

                Comment


                • #9
                  Thank you so much - I think I knew it but greed reared its ugly head!
                  Janet

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                  • #10
                    if he started pay rent himself to the then landlord in the mid 80's then he's regulated fullstop.

                    Comment


                    • #11
                      I think Preston has answered your query in full.

                      The succession rights changed, I think with the Housing Act 1988 and allows for 1 succession only. The important date is the 15 January 1989 whereby the regulated tenancy can pass only once between the spouses. Any tenancy created after this date, to a member of the family living with the deceased for more than 1 year, then becomes an Assured tenancy, under the 1988 Act, and not a Shorthold Assured Tenancy. The rent then reverts to the market rent, which can be agreed or determined yearly as opposed to 2 yearly for a regulated tenancy. The AT still enjoys security of tenure.

                      Since it appears that your tenancy was passed on or was created in 1983, it would then be a regulated tenancy and is governed by The Rent Act 1977. You should think of having this re-registered if you have not done so. To do this you have to apply to the appropriate Rent Office in the area the property is located. You can get the information if you go on the web site of The Rent Service. Unfortunately, if the rent has not been re-registered in the intervening period then the rent you are presently getting will be indexed linked but all the same there will be an increase from what you currently receiving.

                      Let me know if this is helpful or if you need further advice.

                      Good luck.
                      Kikuyu

                      Comment


                      • #12
                        Thank you kikuyu, I am glad to have it spelt out. We have asked for rent reviews in the last few years - unfortunately there were a lot of lost years so the rent is very low.
                        Janet

                        Comment


                        • #13
                          Originally posted by kikuyu View Post
                          then becomes an Assured tenancy, under the 1988 Act, and not a Shorthold Assured Tenancy.
                          To minimise confusion, let's establish correct usage.
                          Lettings within the 1988 Act are called 'Assured Tenancies'.
                          Most of these are deemed 'Assured Shorthold Tenancies'. See Schedule 2A for those that aren't ASTs (and which are colloquially called 'Standard Assured Tenancies').
                          None is a shorthold assured tenancy!
                          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                          4. *- Contact info: click on my name (blue-highlight link).

                          Comment


                          • #14
                            Originally posted by jeffrey View Post
                            To minimise confusion, let's establish correct usage.
                            Lettings within the 1988 Act are called 'Assured Tenancies'.
                            Most of these are deemed 'Assured Shorthold Tenancies'. See Schedule 2A for those that aren't ASTs (and which are colloquially called 'Standard Assured Tenancies').
                            None is a shorthold assured tenancy!
                            Point taken, but you know what I mean. Yes not a SAT but an AST.
                            Kikuyu

                            Comment


                            • #15
                              Originally posted by kikuyu View Post
                              Point taken, but you know what I mean. Yes not a SAT but an AST.
                              One reason for clarity is to make a clear distinction from the [Scotish equivalent] 'Short Assured Tenancy'.
                              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                              4. *- Contact info: click on my name (blue-highlight link).

                              Comment

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