Council Eviction – What Tenancy do I have?

Hi Colin

First, thank you for your very generous donation to supporting the running costs of this forum, it is very much appreciated and we have made you an honorary sponsor of The GOOD Landlords Campaign.

I don't know the answer to your question personally but I do know several people who might and I will be inviting them to comment here.

Thanks again 🙂

More questions I'm afraid Colin. Back to what happened originally.

For the record a council tenancy generally wont be an assured tenancy. Council properties operate under what is called a 'Secure' tenancy system. Slightly different kettle of fish but it might change if there has been a thing called a 'Voluntary stock transfer' in which case he could be assured if the estate voted to transfer management over to a housing association but if, as you suggest the landlord is still the council he will be a Secure tenant.

My questions revolve around how your friend came by the tenancy and may be a bit sensitive. If so I'm happy for Mark to give you my personal email address if you want to discuss this off-forum.

Did the property come off of the housing waiting list or was it a homelessness offer?
At what point did the council know that his wife and child wouldnt be joining him?
what correspondence does he have on this?

The reason why I ask this (and why I say he may be sensitive about public answers) is that normally, when an offer of permanent accommodation comes through a homelessness application for a couple there would be specific reasons why it wouldnt be a joint tenancy and at the moment I dont have enough information to know why the council decided to grant a sole tenancy to his wife whilst knowing that he was part of the family make-up.

The point of knowing about correspondence is to try and argue that if the council knew about the fact that his wife didnt join him 16 years ago and yet continued to accept rent and do nothing about evicting him is that it may be possible to argue that the council have waived their right to sue for eviction by accepting rent without taking any possession action, which is what I strongly suspect would be the argument here. Other common issues where this occurs is with immigration status and one partner doesnt have recourse to public funds.

To be a council tenant his wife must occupy the property as her sole or principal home. if she doesnt then she isnt a council tenant and he has been there ever since as an unauthorised occupant but if there is sufficient evidence to show that since the get-go they knew his wife hadnt joined him and knew that he was paying the rent then he may have a case for being the council's tenant in his own right

If it is true that the councillor who is raising issues is also his housing officer there may be legal issues around what is termed 'Apparent bias'. This isnt the same as actual bias, where a person's actions would have to be shown to be carried out with a particular agenda but it would raise questions about the legitimacy of what is going on.

Council properties should be there for people who need them, why should a single man be in a 2 bedroom flat when there are people with kids living in single rooms.
Has he tried negotiating a swap with the council for a 1 bedroom flat ?

Reply to the comment left by "Sally T" at "26/07/2013 - 13:20":

you have hit the nail on the head, the authorities have been very lax with taxpayers money, it is the same with high London housing costs, why should we as taxpayers fund benefit for someone to live in an area they cannot afford, move out, it is simple, just because they have lived there for x years gives them no right in my book for us to pay their rent.

I can't see anything in the original post to suggest that this man is in receipt of benefit, in fact the post says that he has been paying his rent to the council and this does not happen when the tenant is in receipt of benefit - the rent is paid directly to the council.

I am really pleased that Ben is willing to help with this case - no one better.

I imagine that the tenancy has always been in the wifes names and that the local authority have believed that she and the child were living there all these years. Many local authorities are picking up on situations like this because of bedroom tax.

I can only speak as a good landlord. In my opinion the fact that this man has lived in the property for so long and has paid his rent means that the local authority should offer him a smaller home or at the very least find a private landlord who will at a rent that he can afford. After all there is the spirit of the law and there is the letter of the law and if private landlords did not sometimes act in the spirit rather than to the letter many tenants would be homeless. Where is this man expected to go and live? In a cardboard box?

I accept that homes are needed for those in need but the local authority are at fault if they have not picked up on this for 16 years - now they need to accept responsibility and behave as they expect private landlords to when we have difficult situations.

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Yes Mary I was wondering where this thread was starting to go.

The legal situation regarding Colin's friend's rights is nowhere near clear cut.

If he came by the property as the partner of a legitimate homelessness application without his name on the tenancy agreement, then he may well still be acknowledged as part of the family make-up, in fact I would be very surprised if that wasnt the least of it. Council tax would have expected it for a start because of various allowable discounts.

As a council worker myself I know how inept and inefficient councils can be but it would be a particularly rubbish outfit who would let a situation go on for 16 years without picking something up.................mind you, never say never eh? haha

There simply isnt enough information in the enquiry to give an accurate answer and neither stereotyping his personal circumstances as a social housing occupant nor making presuppositions will take us any nearer.

I await a response to my questions before cautiously offering an opinion

Reply to the comment left by "Ben Reeve-Lewis" at "26/07/2013 - 17:48":

I'm pleased it wasn't just me that felt like that. I was always taught to say nothing if I had nothing constructive to say.

Thanks to all the replies so far, it's interesting how "unclear-cut" something can be.
I quite agree with Sally and Alan about 1 bed places, over the years, as his son grew up, he would have been staying with his dad, now, of course, the son is adult, and I agree, he doesn't really need the 2 bed flat.

Now, I got a fact or two the wrong way round at the beginning, the reason the tenancy was in his wife's name only is because she left him from their previous home and obtained a council flat for herself and her son on the grounds that she (and son) was homeless.
Where He was living, he was faced with eviction (after running a business for a company, with accomodation provided), and she offered that he could come and move in with her.
Well, because they were not 'together' as a couple it wasn't long before she found someone else, then left and moved in with her new bloke.
...Leaving him in the flat.
A month or so later, he told the council the situation and continued to pay the rent and council tax from his bank account, so they knew he was paying it.
He also declared this by claiming single occupancy discount and also being on the electoral role as the sole occupant.
He has claimed unemployment benefit on two occasions and the council benefit has paid his rent, he is currently unemployed (several years now) and they pay it at the present time.

Thanks Ben, for your questions,

I missed one!...correspondence.. I don't think there is any at all.
And as you can see, it was a 'homelessness' offer to wife and child.

And Mary, thank you,
He had worked for a number of years paying his rent himself, at present the benefits system are paying the rent on his behalf, into a rent account which still has her name on for the property !!

Reply to the comment left by "Colin Eagleton" at "27/07/2013 - 11:31":

Bingo.....Thanks, thats a bit clearer now.

A careful housing officer would have always taken the money under the name of 'Use and Occupation charges' and would never have referred to the money received as 'Rent', nor referred to your mate as 'The tenant'.

The famous Street v Mountford 1986 also comes out of the woodwork at this point, which established the three hallmarks of a tenancy:-
rent or service due,
for a clear term,
exclusive occupation.

The only override I can think of that would apply would be the possibility that there was no intent to enter a legal relationship but given the length of time in occupation, the electoral role, council tax and even housing benefit being paid on occasion I would say its a safe bet that your mate is a council tenant.

Even if the housing officer was careful with their wording in all correspondence for 16 years I would argue that receipt of housing benefit would cinch it as they would not pay on use and occupation charges, only rent.

I am presuming that the property is not in London as it is highly unlikely he would have been allowed to stay there under those circumstances given the extreme lack of accommodation and the general attitudes of London authorities.

Which raises the next question though Colin. You originally said that the council are trying to evict him. If he was never given a written,formal contract with the council then it is likely that he will be a common law tenant, also sometimes referred to as an 'unprotected tenant', so he wont have things like the right to by in his favour and will be occupying on a very basic set of principles, although undeniably a tenant.

28 days notice to quit would be the norm, followed by a possession order granted in court in the usual way, which he will find hard to challenge.

I doubt very much that legally he could argue that he was a 'Secure tenant', which is the normal council tenancy type, because of the way he came by the tenancy. However there may be some case law that passed me by on that one.

Apparent bias wouldnt hold so much sway here and given that he is under accommodated too the council's case is strengthened.

Of course his age (if he is 65-ish) and history of health problems may bring him back under the homelessness unit's remit, but thats a whole different argument and I sense myself clutching at straws a bit.