Succession/joint tenancy

waterbaby2

I apologise about the complicated narrative below, and hope someone can help us please ?

My husband and I moved into our current HA property by mutual exchange 2 years ago. It is a secure tenancy, and my husband is the sole tenant. (He was previously a joint tenant with his late wife in the previous property, and survived her to become sole tenant). On moving in we were told by our Housing officer that we could become joint tenants in 12months, and in the meantime that my husband’s previous ‘succession’ wouldn’t carry over into the new property (it now appears this latter may have been incorrect). After 12 months, we were told by our next housing officer that we would have to pay a considerably higher rent if we became joint tenants, which we couldn’t afford, but that I would be able to succeed to the tenancy anyway if my husband died (he’s considerably older than I am), so we decided to leave things as they were (this housing officer didn’t mention the previous ‘succession’,so we assumed that didn’t count, just as we’d been informed by our first housing officer.). However, as our second Housing Officer was leaving recently,we mentioned the joint tenancy to her again beforehand, and she informed us that in fact the previous ‘succession’ did still count, but she believed that if we became joint tenants, I would then still be able to succeed by survivorship.

My questions therefore are: I assume it is discretionary whether the Housing Association would grant us the new joint tenancy (although at least 3 past officers have said they would)? Would this then definitely give me the right to ‘succeed’ by survivorship (‘resetting’ the succession clock as it were?) Is this granting of a new joint tenancy a likely/common occurrence in your experience ? If they don’t grant us the joint tenancy, and my husband dies, do I have a good chance of staying in our home as a discretionary decision by the HA ? I am disabled, and the property (2 bed house) has been adapted both by us and in a minor way by the Housing Association to meet my needs. (Although I don’t currently have a night-time/live in carer, if my husband dies I might need one at some point in the future).

Ideally of course we’d look for legal advice, from a specialist in housing/tenancy law, but unfortunately this is proving difficult: Shelter felt they couldn’t help us at this point, our local CAB is staffed only by ‘generalist’ volunteers , we wouldn’t be eligible for legal aid as my husband works, and we’d struggle to afford solicitor’s fees, (and I’m just guessing that the real ‘experts’ in social housing law are probably more likely to be working in law centres, rather than private practice ?)

So, many thanks for any advice and the benefits of experience you can give us.

Fire_Fox

If your husband dies the last thing you will need whilst grieving is to fight the housing association for the right to remain, address this now. Part of the reason you have been given differing advice is some officers not knowing about the previous tenancy, or the rules tightening up over time. Can't you even afford one appointment with a specialist solicitor?

richardw

Does the HA have a history of evicting disabled widows who aren't joint tenants?

Did the housing officers discuss anything with their managers back at the HA head office?

zzzLazyDaisy

Okay, I am not an expert in housing law, so hopefully someone more experienced will come along soon. But in the meantime...

1 I don't understand why your rent would go up if you became joint tenants? Normally the rent is fixed, and the only way the amount paid would vary, is if you are in receipt of housing benefit, and your circumstances changed. It is worth checking this out, if you have not already done so, as it does not make sense.

2 Normally where there are joint tenants, if one dies the remaining joint tenant automatically succeeds to the tenancy - this is called survivorship, not succession.

As far as I know, the rules on succession only being allowed once on a tenancy relate to people living in the house but not on the tenancy agreement, which was often the case in times gone by when the husband would have the tenancy in his sole name, and still is the case sometimes where there are adult children still living at home, for example (which is exactly the precarious position you are in at the moment)

So, if you were a joint tenant, the rules of succession should not apply to you. However, it might be that the HA refuse to allow you to become a JT, in view of the previous succession - but there is only one way to find out about that.

Personally, I would not want to rely on the discretion of the HA, if I was merely a potential successor with no legal rights, and I would be doing what I can to secure a joint tenancy if possible.

Shelter gives specialist advice on housing issues (not just homelessness)

http://england.shelter.org.uk/get_advice/advice_services_directory

xylophone

Why not put your question in writing to the HA?

squinty

OP. You say you moved through a mutual exchange. The way this was administered is key to understanding your situation. One of two things could have happened,

a. You signed a new tenancy agreement, or
b. The tenancy was assigned to you.

Please can you check your paperwork and let us know what it says?

waterbaby2

As ever I’m overwhelmed by the generosity and support of other forum users, thank you. I don’t know how to quote multiple postings, but hopefully I’ve covered everyone’s questions here:

- We definitely didn’t sign a new tenancy agreement when we exchanged, as we ‘inherited’ the other party’s tenancy – I assume it was some kind of assignment (I can’t reach the papers at the moment).

- From all the research I’ve been able to do online, HAs seem to consider ‘survivorship’ (a joint tenant inheriting the tenancy after the other’s death) as equivalent to a ‘succession’, and therefore ruling out further successions. This is also what I think our old HO was saying just before she left, as she’d gained more experience in the subject. (I don’t know if considering a survivorship as a succession is prescribed in law, or only practice of each HA?). I’ve also seen some other HA’s officers say they wouldn’t allow a new joint tenancy, but I don’t know how commonly others would?

- We queried the rent increase, and were told that if one signs a new joint tenancy, our HA increase the rent to the maximum allowed ‘fair rent’ (secure tenancy) – in our case this would be a massive 20% increase.

- What I didn’t mention earlier is that when we moved,we’d been told verbally that we could become joint tenants – it was only when we came to sign the papers a few days before the move (multiple exchange partners all packed and ready to go) that we were told we couldn’t, and we’d have to wait 12 months (and the potentially huge rent increase at that point wasn’t mentioned). Obviously if we’d been given the joint tenancy at the beginning, our rent would only have increased in line with the inflation formula each year.

- We don’t know how this HA has responded to discretionary successions in the past. Part of the reason we’ve had differing answers on policy I think is because there’s been a big turnover of staff, and we’ve had first time HOs and they’ve had first time managers to consult with.

- Of course we want to sort this out asap, as we’ve been incredibly anxious since we were told I can’t succeed – and ideally we want to have a joint tenancy, however:

o we really want to make sure that if we sign a new joint tenancy, I could definitely succeed, as the extra rent would be a monumental struggle, especially if it’s pointless?
o we would actually like to try and argue that we should have been given the joint tenancy at the beginning as we were told (hence no rent increase),
o we’re trying to be as informed as we can be, and to marshal the strongest ‘moral’ if not legal arguments before we even approach the HA formally, as we feel it’ll be a ‘one shot’ deal as it were.

To add to my original questions, does anyone know the likely cost of a single advice session with a specialists olicitor (and how we might identify one who’s ‘hot’ on social housing, yet in private practice) – all the firms I’ve looked at say they will advise you of costs during your first appointment. (I’m guessing we’d need at least an hour as the full situation is quite complicated.)

But as useful as legal advice would be, it would also be fantastically useful to hear anyone’s suggestions, and knowledge or experience of how other HAs have dealt with things in the past.

Thank you all once again.

Mr_Pitiful

There can only be one succession to a secure tenancy, and in the case of a joint tenancy where one tenant dies, the other will automatically succeed due to the survivorship laws.

Does your tenancy agreement allow more than one succession?

squinty

Ok- thank you for the extra information it makes things clearer. I will try to explain the legal situation from the information you have provided. This assumes that you live in England or Wales – there are different laws in Scotland

Firstly, looking at you husbands previous tenancy. This was a joint tenancy which can only be succeeded to one, this was ‘used up’ when he survived the previous joint tenant. There can be no further succession

Then you exchanged into your current property. It sounds like you were assigned the tenancy (ie took over the other persons tenancy). This does not bring with it any additional succession rights. (However if you had signed a new tenancy agreement it would have been a new tenancy with an additional one succession).

Moreover, as you assigned tenancies the new tenancy needs to have the same details as your previous address – it was not possible to add your name to the tenancy at that time.

So your current situation is that the succession has been used and there can be no further succession. The term ‘discretionary succession’ is a bit misleading – there is no such thing, the council cannot offer another succession, but may offer you a new secure tenancy in your own name should your partner die – but waiting is a high risk strategy.

You mention that you have previously been offered a joint tenancy after 12 months. This is also a bit misleading. The Council cannot simply add you name to the tenancy (a secure tenancy cannot usually be assigned). But they may allow you to end the current sole tenancy and sign a new joint tenancy.

This may also explain the issue with the rent.

For some years now successive governments have operated a system of rent restructuring for social housing. The gist of this is that a social tenant is rented accommodation, in the same area, and living in equivalent priced and sized property should be paying the same rent (the target rent). In broad terms this means that Council rents have increased to Housing Association rent levels rather than HA’s reducing. However, to protect existing tenants from large increases, each current tenant is protected (increases limited to CPI&£2&1/2%) Some Councils have offered this protection to all properties – others have limited this to existing tenants, new tenants pay the ‘target rent’

However, if you were to end your current tenancy, and sign up to a new joint tenancy, and you Council was one where only current tenants are offered protection you would find your rent increased to the target rent. However, this only means that you reach the target rent more quickly – you will not be paying more rent for ever ! However, I cannot work out how the difference would be as much as 20%

If the Council are still willing to offer you a new joint tenancy you need to make sure this is a new secure tenancy, and this would come with new succession rights. I can see no reason why this should not be the case but you needs to ask them the specific question.

To make things more complicated many councils are no looking at the way that they deal with successions for new tenants, as the localism act offers more local rules to be set.

Hope this is of use – you need to ask the Council some questions – and I suggest you do this in writing:

1. If you offer us a new joint tenancy – is this a new secure tenancy with new succession rights?

2. What is the basis of the higher rent level – is this the target rent?

3. If we were to remain in our current property with a single tenancy how long would it take for our rent to increase to the target rent?

4. Are the Council considering any changes to their succession policy for new tenants in light of the Localism Act

Sorry about the format. This is a long post, and I found it easier to type into a WP document and paste into the forum format.

waterbaby2

Squinty – thanks for such a terrifically helpful and knowledgeable post (sorry for my delay in replying as I’ve been ill). If you pick this up, please could I also ask:

- Would any of your earlier answers be different, as we’re actually Housing Association tenants, not Council ? (We’ve a HA secure tenancy as we inherited the other party’s tenancy which went back to the 1980’s). I understand that some of the rules/laws are different between HA and Council tenants but I’m not sure what.

- Would the issuing of a new joint tenancy be discretionary, as I’ve seen some people suggest their Housing Associations wouldn’t do it in our situation, while others would ? (And yes, the previous HO said we would have to sign a new tenancy.)

- I’ve just done some more reading around Localism etc based on your post, and have a whole new set of anxieties (!):

o do HAs also have these powers to change their succession rules, and/or do they have to/are they likely to follow the new rules of whichever LA their properties fall into ?

o it looks like our local council are intending that all future tenants will be granted ‘fixed term, flexible tenancies’, which are ‘secure’ – does this mean if we are granted a new HA secure tenancy, it could/would be one of these, rather than a ‘permanent’ secure tenancy as now ? If so, do you have any idea what the relevant dates are for implementation of both these changes – could they do it anytime after April 2012 ?

o do you know of any other likely changes afoot which could affect us as ‘new tenants’, and from what dates they’d affect new tenancy signings?

- [To clarify, we had queried the higher rent level: as we’re HA Secure tenants, the maximum (‘fair’) rent is set by the Rent Valuation Office Agency every 2 years, and becomes payable when a new tenancy is signed (this is different from the ‘target’ rent, and as I mentioned represents a 20% increase over our current rent).]

Again, thank you very much for any advice/suggestions you can give us, sorry it’s so long-winded, we’re trying to ‘be prepared’ for all possibilities before we approach the HA.

squinty

waterbaby2 wrote: »

- Would any of your earlier answers be different, as we’re actually Housing Association tenants, not Council ? (We’ve a HA secure tenancy as we inherited the other party’s tenancy which went back to the 1980’s). I understand that some of the rules/laws are different between HA and Council tenants but I’m not sure what.

Potentially, what sort of tenancy are the HA offering you

waterbaby2 wrote: »

- Would the issuing of a newjoint tenancy be discretionary, as I’ve seen some people suggest their Housing Associations wouldn’t do it in our situation, while others would ? (And yes, the previous HO said we would have to sign a new tenancy.)

Granting you any sort of joint tenancy now would involve some discretion, and depends of the policy and practices of your own landlord. Many would not consider offering you a joint tenancy in your circumstances, but it appears yours may. (Most HA's don't allow officers to have individual discretion, but have a set of rules that everyone needs to follow )

waterbaby2 wrote: »

- I’ve just done some more reading around Localism etc based on your post, and have a whole new set of anxieties (!):

o do HAs also have these powers to change their succession rules, and/or do they have to/are they likely to follow the new rules of whichever LA their properties fall into ?

The Localism Act reduces the number of people who are eleigble to succeed to a tenancy. However, the now rules do include the spouse as a minimum. The landlord can chose to allow succession by different familty members, but only if this is within the tenancy agreement.

waterbaby2 wrote: »

o it looks like our local council are intending that all future tenants will be granted ‘fixed term, flexible tenancies’, which are ‘secure’ – does this mean if we are granted a new HA secure tenancy, it could/would be one of these, rather than a ‘permanent’ secure tenancy as now ? If so, do you have any idea what the relevant dates are for implementation of both these changes – could they do it anytime after April 2012 ?

Not necessarily. The local authority needs to produce a tenancy strategy, with the expectation that all social housing providers have regard to this, but they cannot compel Housing Associations to follow this. You best bet is to clarify with the HA - if its not secure you need to know what is the minimum length, and what factors will be taken into account when considering an extension. I cannot remember the enactment date for this, but think it may be December.

If your houisng association is one that was originally set up by the Council following a LSVT it is more likley that they will follow the councils guidance

waterbaby2 wrote: »

o do you know of any other likely changes afoot which could affect us as ‘new tenants’, and from what dates they’d affect new tenancy signings?

Obvously I'm not aware of your circumstances, but you may need to be aware of the bedroom tax if you recieve HB.

There are other discussions about this on the forum

waterbaby2 wrote: »

- [To clarify, we had queried the higher rent level: as we’re HA Secure tenants, the maximum (‘fair’) rent is set by the Rent Valuation Office Agency every 2 years, and becomes payable when a new tenancy is signed (this is different from the ‘target’ rent, and as I mentioned represents a 20% increase over our current rent).]

OK, this makes sense. You need therefore to understand what the HA are offering in terms of a new tenancy - ie what type and how secure this will be. You then need to decide if this security is worth the extra charge

waterbaby2 wrote: »

Again, thank you very much for any advice/suggestions you can give us, sorry it’s so long-winded, we’re trying to ‘be prepared’ for all possibilities before we approach the HA.

No problem, and good lucj