Failed Succession Claim - Trespass Hearing - HELP!

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • Failed Succession Claim - Trespass Hearing - HELP!

    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.

  • #2
    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?
    PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

    Comment


    • #3
      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!

      Comment


      • #4
        Originally posted by D Stanley View Post
        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.
        I offer no guarantee that anything I say is correct. wysiwyg

        Comment


        • #5
          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.
          I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

          Comment


          • #6
            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'.

            Comment


            • #7
              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
              I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

              Comment


              • #8
                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_ad...ssion_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.
                Thunderbirds are go

                Comment


                • #9
                  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?

                  Comment


                  • #10
                    Originally posted by D Stanley View Post
                    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 ?
                    Thunderbirds are go

                    Comment


                    • #11
                      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.
                      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


                      • #12
                        Originally posted by Paul_f View Post
                        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..
                        Thunderbirds are go

                        Comment


                        • #13
                          Originally posted by 45002 View Post
                          Legal aid is still available for people who face loosing there home..
                          Are you sure? (Or even losing their home!)
                          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


                          • #14
                            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.

                            Comment


                            • #15
                              As asked more than once, when did mum move in to this property??
                              I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                              Comment

                              Latest Activity

                              Collapse

                              • Mouldy silicone wear and tear?
                                aciduzzo
                                Tenants are moving out today and i am doing the final inspection later; however, last time i was at the flat i noticed the bathroom was in a poor state.

                                What is the general opinion on black mould that has formed inside bathroom silicone? Is it considered wear and tear? Also, the seal...
                                03-07-2017, 08:07 AM
                              • Reply to Mouldy silicone wear and tear?
                                mystic08
                                You might like to gift your new tenants some Kilrock mould cleaner which is magic in a bottle! Cheapest in the Pound shop or The Range but supermarkets sell it too. Works brilliantly on algae too. Garden pots, patios, headstones etc.
                                22-07-2017, 20:52 PM
                              • Discussion - GDPR and implications on landlords
                                MrShed
                                I've just posted something on GDPR and then wondered whether it had been discussed on here before - a quick search implies its never been mentioned.

                                I thought I would raise a topic to discuss it and the implications on landlords.In effect this is a replacement of the Data Protection Act...
                                20-07-2017, 15:01 PM
                              • Reply to Discussion - GDPR and implications on landlords
                                jjlandlord
                                That's the exemption that allows sending data outside of the EEA, which is the issue discussed.



                                No, because of that very exemption....
                                22-07-2017, 19:19 PM
                              • Referencing question
                                kangoo1
                                A couple wants to rent from me, she is on maternity leave and will not be returning to her previous employment, he is permanently employed and moving due to a job transfer. I have referenced him for the full rent and his guarantor has been successfully referenced.
                                I am going to prepare the ast...
                                22-07-2017, 17:19 PM
                              • Claiming for protected deposit
                                mandm
                                This is an interesting one, got me into a spin.
                                Tenants signed AST but decided to leave after 6 months and 3 days (problem with moving) using the break clause in the AST. I protected the deposit using DPS (Insured) and returned the deposit minus deductions when the moved out.
                                I served the...
                                21-07-2017, 08:00 AM
                              • Reply to Claiming for protected deposit
                                JK0
                                I'll leave it at that. I'm not going to get into one of JPK's interminable arguments.
                                22-07-2017, 16:28 PM
                              • Reply to Discussion - GDPR and implications on landlords
                                jpkeates
                                That's simply one of the Schedule 2 exemptions which, if met, allows a process using personal data at all - all the other principles still apply in parallel (where it can be stored, be not excessive, kept up to date etc).

                                So, while it might be OK because it relates to a contract, there...
                                22-07-2017, 15:22 PM
                              • Excessive estate agent fees
                                Cml241
                                I have a property which I started renting out via an agency. When the contract started, they found new tenants, did the relevant checks etc and charged an upfront fee which equates to approx one month's rent. As one year has almost passed, the agent has approached me asking if I want them to 'renegotiate'...
                                21-07-2017, 16:26 PM
                              • Reply to Excessive estate agent fees
                                mariner
                                A new 12 month fixed term does provide LL & T with extra security but can lead to complications for either if their resp circumstances/legislation change during the new AST.
                                Personally, I would prefer if a orig AST was for a fixed 6 month term, followed by an SPT that required both LL &...
                                22-07-2017, 14:09 PM
                              Working...
                              X