possession

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    possession

    I’ve been a housing association tenant for 13 years, I rent one of 2 flats in a converted house the other is leasehold. In 2001 the landlord mistakenly gave me sole use of the garden and 2 walk in cupboards that form part of the leaseholders lease. 2008 and 3 leaseholders later the landlord starts demanding the possession of cupboards and access.

    In 2008 lawcruncher posted this does it apply to me?

    If a tenant occupies land of his landlord "as a mere extension to the locus of his tenancy", the occupation is not deemed to be adverse (Lord Hastings v Saddler). However, he will be entitled to occupy the land until the end of his tenancy (Smirke v Lyndale Developments).

    #2
    there are two conflicting problems; one is that YOUR landlord made a mistake as to the facts and the other is as you say the law as per Smirke and Lyndale.
    If the garden is registered to the long leaseholder his right to possession would prevail; with possibly if the garden was demised to you the prospect of some damages. If the garden was not demisedto you, ie specifically let to you in your tenancy agreement, better still depicted as part of the letting in a plan suggest you take the view that you have been lucky to enjoy the use of it for all these years. If the HA did specificallylet it to you then possibly there might be a deal to be done with a little bit of mooney in your favour to relinquish this part of the accommodation provided

    Comment


      #3
      Thanks quarter day, can you tell me what law has my landlord breached by effectively leasing the items twice. Also, is changig my tenancy without agreement a breached of my statutory rights? Thanks

      Comment


        #4
        Landlord unlawfully rented

        My Landlord has rented me on an assured tenancy part of a property contained within the lease of another person, the leaseholder is demanding possession. Can anyone advise what law/s my landlord has broken

        Comment


          #5
          if you have an assured tenancy then it means it will be very difficult for your landlord to ask you to leave, do you mean you are renting a property under an Assured Shorthold Tenancy?

          Is it a flat? If so then your landlord should have gained permission from the freeholder of the block of flats to let the flat to you. If he did not gain permission then the freeholder could withdraw consent to let.

          Comment


            #6
            The landlord is an HA the tenancy has been assured for 13 years, This involves 2 cupboards and sole use of the garden. The HA admits its mistake although demands I give up possession. I would like to know what regulatory bodies I can make complaints to and if in fact the landlord has broken any laws by effectively leasing the same to 2 different people.

            Comment


              #7
              Ok, for what reason do you want to complain?

              just for the sake of it or to try and keep the use of the cupboards?

              Comment


                #8
                Ok, for what reason do you want to complain?

                After 2 years of what can only be described as corparate bullying and I've had enough.

                Ownership is in the balance the leaseholders rights should prevail however "if a tenant occupies land of his landlord "as a mere extension to the locus of his tenancy", the occupation is not deemed to be adverse (Lord Hastings v Saddler). However, he will be entitled to occupy the land until the end of his tenancy (Smirke v Lyndale Developments)." ?

                Comment


                  #9
                  I have a counsels opinion that says I can sue for misrepresentation of tenancy, breach of contract and interference of my quiet enjoyment. The landlord had the advise done to find out its liability.
                  Last edited by Moderator2; 02-10-2011, 16:50 PM. Reason: Edited as requested

                  Comment


                    #10
                    So any landlord can let the same land to 2 different people without breaking any law?

                    Comment


                      #11
                      OP has been an 'assured' HA T for 13 years (1998?)
                      By his own admsission, he was only granted sole use of garden & cupboards in 2001, then part of another Leaseholder's property. Was this confirmed in writing? Deed altered?
                      HA have now realised their mistake, prompted by subs Leaseholder(?) poss because Deeds show garden etc to be part of their property.
                      Since the OP ha not had undisputed use for 20+ years I fear he cannot claim 'squatters right to possession' unless anything is in writing.
                      Thus the HA may be able to rectify their mistake, requiring OP to relinquish occupation, but OP may have a claim for 'loss of enjoyment' or restitution, due to HA negligence. Only a Court can decide IMO

                      Comment


                        #12
                        Thank you. I do not have squatters rights or have rights to adverse possession.

                        The tenancy agreement like most HA agreements is pretty generic and discusses the garden in general terms. However I have an email from the area manager discussing the need for sole use of a garden because of a dog and it is perfectly clear this was an inducement to take the tenancy. I also have a landlord reciept for the keys to the cupboards and an email verifying the keys are for the cupboards.

                        The dog is lost in all of this but of course she means the world to us the HA is completely ignoring not only the importance of the dog in taking the tenancy but also what this means her continued existence.

                        They are also ignoring the fact they where in conversation with us about extending the flat whether we purchased or not and we have spent the last 3 years here overcrowded while they tried to sort the mess out, they didn't confirm ownership until 1999.

                        In 2005 I secured a deed of transfer from the then leaseholder. The deed was drawn up I have a copy however the solicitors for the HA failed to get it signed and registered. From 2007 when the now leaseholder demanded her rights it took them 2 years to realise their 2nd mistake.


                        Bottom line is we're a happy family here with friends and roots and its a good area with no recorded crime last year. Buy or rent with one more room we would never consider leaving, ownership of the cupboards stops is crucial to extending.

                        Comment


                          #13
                          Hopefully we can clarify the position by considering three separate scenarios.

                          1. A, a freeholder, lets a flat to B and the letting excludes the garden. The garden is not let to anyone else. B takes possession of the garden and uses it for 12 years. The occupation is "a mere extension to the locus of his tenancy". The result is that B does not acquire the freehold of the garden. However, he does acquire the right to continue the occupation until his tenancy ends. In effect, the garden has become part of his tenancy.

                          2. A, a freeholder, lets a flat to B and the letting excludes the garden. The garden is later let to C. B takes possession of the garden and uses it for 12 years. There is no adverse possession against A because A is not entitled to possession. There is however adverse possession against C and C cannot claim possession. A cannot claim possession whilst C's tenancy continues, but can claim it as soon as C's tenancy ends.

                          3. A, a freeholder, lets a flat to C and includes the garden. Later, and before C's tenancy expires, he lets another flat and the garden to B who is unaware that the garden has been let to C. C is entitled to possession as he was first in time. However, B still has a tenancy of the garden*, albeit not one entitling him to possession whilst C's tenancy continues. If B takes possession of the garden his possession cannot be adverse against either A or C. This is because for there to be adverse possession B must have the intention to adversely possess which he cannot have because he believes he is in possession by virtue of his tenancy. Indeed, the mere fact that he has a tenancy precludes him from claiming adverse possession. If C wants possession B has to give it to him. B has a claim against A.

                          (*It is possible for a landlord to grant more than one tenancy of the same property; the second in time is known as a concurrent tenancy.)

                          Comment


                            #14
                            Thank you so very much lawcruncher as you can see I started the thread quoting you and it seems I am your 3rd scenario.

                            Presently "A" has taken back possession of the cupboards by changing the locks without my agreement and has filed a county court action on behalf of "B" to gain unrestricted access to the cupboards and use of the garden

                            "A" also removed sockets and lights I had fitted before changing the locks.

                            "A" is acting on advise from the Lamb Chambers, this is how they advise I should be dealt with

                            1) It is his good fortune that none of the successors-in-title to "B" ever appear to have asserted or enforced those rights. But they exist nonetheless and can be enforced, not by "A" but by "B".

                            2) Whilst it is accepted he was given keys to the coal sheds "A" could not in law grant him a right it did not possess itself.

                            3) He should therefore vacate the sheds immediately, return the keys to "A" or "B" and allow "B" unrestricted use of the sheds and rights into the back garden.

                            "A" has also proposed the garden should be sectioned with fencing panels. This would separate us from both the garden and our dog and separate the dog from the property.


                            I intend to use your quoted (Smirke v Lyndale Developments) I'll let you know the reult

                            Again thank you,

                            Comment


                              #15
                              Assuming that the actions of the landlord are wrong when using (Smirke v Lyndale Developments) and turning to the torts of a claim, what a nightmare do I have to put a figure at every heading?

                              Can I use s.1 PEA in relation to the cupboards (they took them back) and s. 2 PEA in relation to the garden (2 years of demands from both HA and its solicitor). Also do I have a claim for harassment under s.3 PHA

                              Thanks

                              Comment

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