Council House Advice Needed!!

fruitpastel1

I currently live with my mum in a 2 bedroom council property, myself and my mum are joint tenants. My mum is shortly going to be moving out to live with her partner so she is going to try to 'assign' the tenancy over to me so I become sole tenant. The problem is that I will be living alone in a small 2 bedroom property therefore I am worried the Housing Team may see it as 'under occupancy' and either refuse to grant the assignment or want me to move to a smaller property.

I have lived in the property with my mum for many years and do not wish to move, I am able to manage the property financially but I am just concerned that I will not be able to stay there. I cannot afford to buy the property (much as I'd like to) on my wage nor afford to rent privately by myself. Are there any Housing Officers out there who can offer any advice??

squinty

Assuming you are in England. You cannot assign a secure tenancy except in certain situations, none of which appear to apply in your case - the council should refuse your request.

However, what you need to understand is that althought there are two names on the tenancy, the tenancy is a single entity. As long at you remain at the property the tenancy is not at risk and the council cannot ask you to leave. There is nothin illegal if someone holds any number of joint tenancies !

You do however need to be careful about ending the tenancy. If you mum was to end the tenancy this would have the effect of ending the tenancy on behalf of all joint tenants, including you, and you would lose the property.

Bethankim

sorry squinty but thats not strictly true. fruitpastel you need to check your tenancy agreement with your council, having just checked mine online this is what it says about assigning a tennancy. So if your council has a similar bit in the tennancy agreement then yes you could take over the tennancy. although they may deem it underoccupied again double check.

Assignment

In general your tenancy cannot be assigned (transferred) to anyone else. However, there are a few exceptions to this rule. One of the exceptions is an assignment to your spouse or another member of your family.
In both cases the person receiving the tenancy must have resided in the premises as their only or principal home and in the case of family members such person(s) must have been resident with you for a minimum continuous period of twelve months.
As such an assignment can only occur once, it will not be possible to assign the tenancy if it has previously been assigned unless the previous assignment was part of an exchange of tenancies, or in pursuance of a Property Adjustment Order in connection with matrimonial proceedings.
Another exception is the right of secure tenants to assign their tenancy to another secure tenant by way of an exchange. In this case, the written consent of the Council must be obtained. The person with whom you may wish to exchange must also obtain the consent of their landlord.

Jowo_2

Have a read of the following post where Defrag helped a friend go through the same process. Their council permitted the tenancy to be assigned. As far as I can tell from their experience, there is no assessment of under-occupation or obligation to move to a smaller property in those circumstances but this is the preference of the new tenant in this particular case.

http://forums.moneysavingexpert.com/showthread.html?t=1860429

Read the tenancy agreement or tenant handbook which is a guide that is bound to be online on the council website to understand their policies.

squinty

No, I am fairly confident I have this right. The legislation on this is very clear and is laid out in Section 91 of the 1985 Housing Act (as amended).

This says that a secure tenancy is not capable of being assigned except in certain prescribed circumstances. These are:

a. an mutual exchange
b. following an order made under Matrimonial Causes Act 1973 or Matrimonial and Family Proceedings Act 1984 or the Children Act 1989 or the Civil Partnership Act, or
c. an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment.

The situation you describe applies to this third clause. However it does not apply to joint tenants as the OP is already the tenant, albeit a joint tenant. They have no need for succession rights. (Note that can only apply to tenancies where there has been no previous succession).

As a joint tenant the OP and mother are jointly and severably responsible for all aspects of the tenancy, and are considered as a single legal entity. An assignment from a joint to a single tenancy would be in effect the OP signing the tenancy over to him/her self.

There is also a dull technical point here. Schedule 2 of the 1985 Housing Act lays out the grounds for possession of a secure tenancy. Ground 16 of this allows the landlord to seek possession of the property (providing alternative accommodation is offered) if the property is too large for a person who has succeeded to the tenancy. There is an argument that if the person is treated as a successor to take over the tenancy, they are also treated as a successor with regards to the size of the property.

The original post sounded worried that there was a risk of them losing their home. My first post was to try to reassure them that they were already a secure tenant and as such they were safe, and fully entitled to remain in their current home. They do not need to take any further action to ensure this security. I am however concerned, that unless they were fully aware of the situation and their legal standing then they may inadvertently take action that puts their home at risk.

Jowo_2

Right, Squinty, so are you saying that the OP just needs to arrange for the joint tenancy to transfer into sole ownership (which I understand can be done by the outgoing tenant consenting to this taking place) but might require to move to a 1 bedroom property?

squinty

No, what I am saying is that it is not possible to assign the tenancy. Any attempt to make this happen may be risky to the original tenant.

I'm also not sure what you (Jowo) mean by transfeering the tenancy inot sole ownership - this is in effect an assignment which is not allowed.

Recognising that it is not possible to assign a tenancy from joiint to single names some Councils did allow a 'Deed of Release' to transfer a tenancy from joiint to single names. However in 2000 there was a court case (Burton v LB Camden) which made it clear that this was not acceptable.

So what I am saying is that legally, with the exceptions listed in the 1985 HA there is so way to 'convert' a joint secure tenancy into a single secure tenancy. But not changing the name of the tenancy has no impact on the rights of the OP to remain in their current home.

However, I am also aware that not all councils interpret this correctly, and some may allow some changes. However, this is not a risk free approach, and may lead to complications - is a change to the name on a tenancy worth this risk?

Jowo_2

Thanks, Squinty.

However, In Defrag's thread (Lewisham council), their tenant handbook indicated that the transfer from joint into sole ownership is possible simply by the outgoing tenant granting permission or through a court order.

http://www.lewishamhomes.org.uk/editpics/741-1.pdf

There have been other threads on this forum from council tenants (couples who are joint tenants whose relationship has broken down, for example) and the council is also allowing one tenant to take over sole tenancy.

If there isn't a way to convert a joint into a sole (with the permission of both parties), I can't see how social housing manages to operate, given half of married couples end up divorcing...?

Also, isn't is a breach of tenancy agreement if a person doesn't have the property as their primary residence so 'doing nothing' when one moves out doesn't sound sensible to me?

fruitpastel1

Thanks all for your replies.

The property was originally a single tenancy in my mum's name only (after my parents split up in 2000 we were classed as homeless and began a new tenancy) - I then chose to become a joint tenant in 2005 in case anything ever happened to my mum which the council had no problem with. If you are allowed to make a single tenancy a joint tenancy - then can it not be reversed also?

We recently had a visit from a Housing Officer to sign the new tenancy agreement after all the housing stock was transfered, and they said they were surprised that we were joint tenants as it was not necessary. The tenancy agreement does state however that lodgers are permitted so this may be an option should me living alone be an issue.

I am planning to visit my local Citizens Advice Bureau this Friday for advice on my situation.

misspoppy

Hi

You could call shelter for advice. I've called them in the past and they were very helpful.

crabcakesfordinneragain

Apart from your not wanting to move, is there a compelling reason for you to stay in that flat? Might support your case if there is one or more specific reasons. I remember something similar happened to a friend of mine, and she argued something like she needed to remain close to her uncle (who had MS) in case anything happened when her aunt was on night shift. I have no idea whether or not that swung it, but some sound reasons won;t do any harm and might well help