seeking advice on legal standing for rent arrears small claims court case

AdrianC

golddustmedia said:

OK, hopefully the below clarifies the position.

You aren't listening, are you?

The deceased was never named as the landlord.

Irrelevant.

The daughter had power of attorney for the deceased, and let the property at the request of the deceased.

PoA ceases with the deceased's last breath.

If the daughter really was landlord, PoA would be irrelevant, because the property would have nothing to do with the deceased.

PoA confirms the deceased was the landlord, because the daughter was acting on their behalf.

The tenancy agreement names the daughter as the landlord.

The TA is wrong.

The property currently belongs to the estate, to which I am executor.

Bingo!

So, on the basis that the daughter acted on PoA to let the property, and said PoA ended upon death of the owner, is it possible that the title of landlord now transfers to me?

Not really... The ESTATE is the landlord. You are the executor of the estate.
Think of the estate as being like a company. You are the manager of the company.

You're in pretty much the same situation as the daughter was while the deceased was extant - you are running the property on behalf of the actual landlord.
Before, it was under PoA. Now it's as executor.
Attorney/executor are delegated the work, but the (now-deceased) landlord/their estate gets the income but retains ultimate responsibility.

Please assure us that the daughter hasn't been pocketing the income...?

greatcrested

golddustmedia said:

OK, hopefully the below clarifies the position.
The deceased was never named as the landlord.
The daughter had power of attorney for the deceased, and let the property at the request of the deceased.
The tenancy agreement names the daughter as the landlord.
The property currently belongs to the estate, to which I am executor.

So, on the basis that the daughter acted on PoA to let the property, and said PoA ended upon death of the owner, is it possible that the title of landlord now transfers to me?

Drip drip drip....

The landlord was always the grandparent, who owned the property.

The daughter was acting on behalf of the owner/landlord, under her POA

Rent received should have been going to the grandparent.

Tax on the rent should have been paid by the grandparent.

The daughter never owned, and still does not own, the property, and has no right to the rent. Indeed if she was keeping the rent during the grandparent's life she has been abusing her power of attorney which is a serious matter.

On the death of the owner, the daughter's POA ended..

On the death of the owner, the property became part of her estate.

The tenant should have been informed, in writing, as per the Act previously linked above.

Rent should go to the Estate.

As Executer you are responsible for a) informing the tenant b) collecting rent for the Estate.

The daughter has no role anymore.

As for your original question, you should be bringing this action as Executer, but you have the complication that the tenancy agreement erroneously names the daughter as landlord, when in fact she was acting under a POA for the real landlord, the owner/grandparent.

Goodness knows what the court will make of this...... see a solicitor.

oldbikebloke

grandparent owned the property

tenancy commenced when GP still alive - who was named as LL on that tenancy?

GP now dead...

• if GP was named LL then the tenancy has continued in the name of the estate and you are its executor. Legal action will be taken by "The Estate of (name of GP)"
• if "someone else" was named LL then presumably that was the daughter, she is alive and nothing has changed at all about the tenancy - which then puts your involvement in a completely different perspective since the executorship is then irrelevant and the legal action will be taken by the LL (daughter)

the confusing bit is 

 golddustmedia said:

The daughter was always the landlord.

if the daughter received the money whilst GP was alive then they can only be the LL if they were named as such on the tenancy agreement. If they were not so named, then GP had the entitlement to the cash and should have paid tax on it accordingly. Nothing subsequently prevents GP giving the money to someone else afterwards, but the mere fact of receiving cash does not make that someone the LL.

You need to be very clear on who is doing what, because there are more implications that just the court document. For example,  I am doubtful if the estate is declaring its tax position correctly if the estate is the landlord, since you say the rent is paid to the daughter. Estates have income tax liabilities in their own right before passing cash over to anyone else.

 

greatcrested

and don't let us get started on whether the grandparent, daughter, or you, complied with all the legal requirments of a landlord.

Given the confused and obviously poorly-understood state of the roles of the various people, I suspect there may well have been other omissions......

golddustmedia

greatcrested said:

and don't let us get started on whether the grandparent, daughter, or you, complied with all the legal requirments of a landlord.

Given the confused and obviously poorly-understood state of the roles of the various people, I suspect there may well have been other omissions......

I personally am a landlord on other property, so I can assure you that I ensured legal compliance on Right to Rent, Gas safety, deposit protection etc. Additionally the tenant was advised in writing when the property owner died, however no mention was made of any change with regard to landlord etc since they have only ever dealt with me.

With regard to taxation / money, the rent was/is paid to an account jointly held by the the deceased and daughter and said money used to by the deceased to pay for their care costs. Since their death the rent is (or should be) paid into same account now held by the estate. The income was declared.

I wholly admit I have likely not got everything right from the start, so putting aside the chastising I'm desperately seeking advice on how to proceed with regard to recovering rent arrears and in due course with evicting the tenant who refuses to leave without a court order.

Put simply, we wish to extract ourselves from the situation we're in, wind up the estate and move on with our lives.

greatcrested

Sorry if I jumped to erroneous conclusions and maligned you!

And pleased you seem to have otherwise managed the property well.

FYI he Act states:

3 Duty to inform tenant of assignment of landlord’s interest.

(1)If the interest of the landlord under a tenancy of premises which consist of or include a dwelling is assigned, the new landlord shall give notice in writing of the assignment, and of his name and address, to the tenant not later than the next day on which rent is payable under the tenancy or, if that is within two months of the assignment, the end of that period of two months.

(2)If trustees consititute the new landlord, .........

(3)A person who is the new landlord under a tenancy falling within subsection (1) and who fails, without reasonable excuse to give the notice required by that subsection, commits a summary offence and is liable on conviction to a fine not exceeding level 4 on the standard scale.

Re the court papers, your options seem to be

* treat daughter as landlord since she is named as such on the Tenancy agreement, and hope the court does not question this.

a) you cannot submit papers and act for her in court as 'agent'

b) you do not have POA for her, so cannot act for her. You could ask her to grant you this, which the court might accept, though I suspect they'd compare the date of (new) POA and date of original court submission, and throw case out

c) daughter could re-submit court papers herself

d) daughter could instruct a solicitor to re-submit court papers (or advise her generally)

* treat deceased as landlord as she owned the property

a) you could then act as Executer

b) but court would then query why deceased was LL (and you now are) given that tenancy agreement names daughter.

c) you would then produce daughter's POA to show she was acting on behalf of owner and

d) you would produce will and Probate docs to show you are now acting for (deceased) owner

Whether you choose one of the above, based on comments from an unqualified, unknown internet nutter, or seek legal advice, is up to you!

steampowered

Who owns the property?

It sounds like the estate of the deceased owns the property. In that case, the claimant should be the estate of the deceased.

You could probably still sign court documents but you would be signing them on behalf of the estate in your capacity as an executor of the estate. Not in your own name.

Alternatively, you can finish dealing with the estate. That would involve the estate transferring the property into the names of the beneficiaries, and the estate assigning the right to receive rent arrears to the beneficiaries. The beneficiaries could then bring legal proceedings in their own name as the new landlords. 

Also, as the estate owns the property, the rent should be paid to the estate, and I assume the estate will need to be declaring the rent to HMRC and paying income tax on it.

saajan_12

AdrianC said:

The property belongs to a grandparent who is now deceased. The landlord is their daughter and still alive.

Nope. One or the other of those.
Dead people cannot own things.
Their estates can, and do - right up until the point bequests are disbursed to beneficiaries.
Live people cannot be the landlord for other people's property.

In general, not necessarily. 
The property owner does not always have to be the landlord of a property. The property owner (A) could let the property or otherwise grant permission to use the property to B. B could then let the property, or part thereof under an AST to C who are resident tenants. 

The relationship between A and B can be in various forms, eg B is often a rent guarantee agent, or a council housing association. It doesnt necessarily have to involve rent. 

greatcrested

saajan_12 said:

AdrianC said:

The property belongs to a grandparent who is now deceased. The landlord is their daughter and still alive.

Nope. One or the other of those.
Dead people cannot own things.
Their estates can, and do - right up until the point bequests are disbursed to beneficiaries.
Live people cannot be the landlord for other people's property.

In general, not necessarily. 
The property owner does not always have to be the landlord of a property. The property owner (A) could let the property or otherwise grant permission to use the property to B. B could then let the property, or part thereof under an AST to C who are resident tenants. 

The relationship between A and B can be in various forms, eg B is often a rent guarantee agent, or a council housing association. It doesnt necessarily have to involve rent. 

Or, as in this case, B could be acting for A as POA.

Though A would still be the landlord and should be named as such, with B simply signing on his/her behalf (just as an agent usually does).

golddustmedia

Thank you all for the constructive feedback.