Failed Succession Claim - Trespass Hearing - HELP!

D_Stanley

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.

vintagebrighton

Have you paid any of the rent at the property and has it been accepted as rent?

McKneff

Why not go to a solicitor who is conversant with this sort of law. Most of these will give you a half hour free session.

Much better than coming on a public forum surely. You will get it from someone who actually knows the law inside out.

D_Stanley

No, I have asked the H.A. to let me pay rent but they refuse - I believe there is an issue with them creating a 'de facto' tenancy if they accept rent

D_Stanley

McKneff wrote: »

Why not go to a solicitor who is conversant with this sort of law. Most of these will give you a half hour free session.

Much better than coming on a public forum surely. You will get it from someone who actually knows the law inside out.

It would be wouldn't it - but as it's trespass there's no route to legal & as I've been self employed for 6 months & have no audited accounts I can't prove my income so the legal services commission won't 'allow' Shelter or anyone like that to advise me! I have contacted maybe 12 legal firms & they all give me the same story. Cheers anyway

anselld

Have you requested a copy of the HA policy for discretionary succession?
If they don't have one it will be difficult for them to domonstrate they have acted fairly.
If they do have one you can at least understand if it has been fiarly applied and make a defence if not.

D_Stanley

anselld wrote: »

Have you requested a copy of the HA policy for discretionary succession?
If they don't have one it will be difficult for them to domonstrate they have acted fairly.
If they do have one you can at least understand if it has been fiarly applied and make a defence if not.

Thanks for the reply, it's a good point.

I have & they say they don't have a written policy! The question is though, even if I can demonstrate that I have been treated unfairly, as it is DISCRETIONARY, will the court have any power to overturn their (albeit uinfair) decision.

Does anyone know the answer to this please?

vintagebrighton

D_Stanley wrote: »

No, I have asked the H.A. to let me pay rent but they refuse - I believe there is an issue with them creating a 'de facto' tenancy if they accept rent

That's what I was wondering given they've been floundering a bit.... wondered if they knew what they were doing. Do you have any reason to be priority for housing ie age, health etc? Did you get some one off advice from Shelter or CAB? I would've thought this was a homelessness issue - arising from 'trespass' I know but you'll still be homeless.

darkpool

tbh i think HA houses should be for people in the greatest need. i don't see why you should "inherit" your mum's flat.

why not rent a flat privatedly? or you think the taxpayer should subsidise you?

D_Stanley

Yes I thought along the same lines - to be honest I really thought the reason they've let this drag on for a year is because they realised they'd acted incorrectly & were waiting to see if I moved out before they had to offer me the tenancy.

I don't really have any special reasons to be housed apart from being a hardworking, skint single parent! Can't get advice from shelter/cab as i'm self employed - 'come back when you're homeless'


Take your point darkpool, although this has been my home too for 6 years & I would like to try & retain security of tenure as I have children. Obviously I am in need of housing or I wouldn't be fighting a bleedin' court case would I

D_Stanley

and may I add, darkpool, that there is no subsidy involved. New HA tenancies are let at market rents & are often of a lower standard than private property, but with the benefit of a secure tenure. I suppose Housing Benefit is a taxpayer subsidy but eligibility is the same for LA, HA & private tenants & in any case, I don't receive it.