Tenancy agreement with the Council

vintagebrighton

If this is a secure tenancy (which is likely as the landlord is a council and the tenancy is 38yrs old) then surely it can't be changed. It could be argued though that as the council were advised at the time that the tenant had left and his wife was still living in the property and they continued to accept rent from her then at the least they've created a new tenancy. The mother can't be a 'tolerated trespasser' as they presumably didn't advise her that would be her status at the time. Definitely find as much paperwork as possible.. is there anything from years back from the council? What name is on the rent statements/books? You could even ask the council for copies of everything they've ever sent to the 'tenant' under a FOI request. You need information but so do they. If you do need a solicitor you need to find a specialist in tenancies/housing law so I guess Shelter/CAB would be good places to start as they should have info about practices they can refer people to.

squinty

The reason why the advice has been to see a solicitor is that it is not normally possible to assign a tenancy, but on of the reasons it can happen is through a property adjustment order (usually as part of a legal agreeement when a family split up). If this is granted, the council have to make the change.

Out of interest - if mum told the council 25 years ago that dad has left, who have the council (Housing Department) been addressing letters to in the intervening period? For example, the rent increase letters, repairs reciepts, name on the rent/payment card etc.

jamil0458

The tenancy would have been capable of succession if your father had died and not simply gone away - but that does not mean that it would not be capable of being done.

Your mother may also have a common law right of succession (although this is usually only on the death of a spouse/partner).

The ideal way it should have been done is under the matrimonial homes legislation a long time ago - this may still be possible, but legal advice should be sought.

If your mother feels threatened with eviction in any way then she should seek legal advice asap, she does appear to have a very strong case for retaining the property, and the council may been deemed to have acquiesed in assigning/succeeding the tenancy to her.

Hump

Is your mother still legally married to your father? and is he still alive?

jamil0458

Just a follow up for the OP -
For the council to seek (and obtain) an order for possession they would require to satisfy the court that it was necessary under one of two headings, namely

(1) Some unlawful reason, default or breach - this could mean anything from house being too big for your mother's current needs, to anti-social behaviour or non-payment of rent. Or
(2) As a trespasser.

If your mother has been lawfully living there with no rent problems, tenancy defaults or any other type of unlawful behaviour, it would be difficult to see how the council could even seek such an order far less succeed in obtaining a possession order - since some form of default or unlawful behaviour is a pre-requisite to going down that route.

The only other route could be as a tresspasser, and in the circumstances you describe over such a long period of time, your mother's home and right to live there could very well be protected under Article 8 of the ECHR.

A recent judgement suggests your mother may very well have an Article 8 ECHR claim, so she should seek specialist legal advice asap. Although the judgement was a negative result for that particular 'tresspasser', it did give good insight into the type of cases and circumstances the appeal court (and previous appeal court decisions) were analysed, and would suggest your mother has a strong case to argue that her current 'home' (albeit not in her name) has been the only home that could ever be recognised under an Article 8 claim, and therefore affords the right of protection under Article 8.

Birmingham City Council v Lloyd [2012] EWCA Civ 969

Abstract:

The appellant local authority appealed against a decision dismissing its claim for possession of a property occupied by the respondent (L) as a trespasser. The local authority had granted L's brother (G) a secure tenancy of a flat. L was a tenant of another local authority property with a history of rent arrears. When G died, L moved into his flat without the knowledge or consent of G's estate or the local authority.

Notable comments in the judgement:

Accordingly, whilst it was not appropriate to say that it was never right to permit a person who was a trespasser to invoke art.8 as a defence against a possession claim, a trespasser seeking to raise that argument faced an uphill task of establishing most exceptional circumstances.

Art.8 ..concerned respect for a person's current home, and not a duty to ensure that he had a home.

See also - Manchester City Council v Pinnock

The bolded quote suggests that your mother would NOT face any difficulties in establishing those 'most exceptional circumstances', provided as I said before, that none of the normal reasons indicated at Point 1 above applied (ie no unlawful behaviour, default, arrears, etc).

In your mother's case it would be whether the decision to make(or seek) an order for possession as a trespasser (or for some other lawful reason) was proportionate under Article 8 rights.

PS - My advice is my own unqualified opinion. I am not legally qualified.

Buttercup1972

Many thanks for all your replies. My mum has no rent arrears or any tenancy defaults and never has so hopefully that will help. She sought advice from a solicitor yesterday and supposedly the tenancy officer is also seeking legal advice too so I really hope this is all sorted out soon.

McKneff

Let us know how you get on. Please.

Buttercup1972

We got legal advice and the council has too and we were told we definitely have to go to court. This is absolutely terrifying for my mother as well as me. She is very scared of travelling and hasn't travelled for many years. I'm not really sure what to do next..

Fire_Fox

Does your mother have agoraphobia? If so you need to let the council and the court know how this would affect her attendance at court or ability to move with a letter from her psychologist/ other senior mental health professional. Again IMO you should get onto the social housing list, your mother might get a higher priority if she has medical issues.