By virtue of paragraph 1(1) of Schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996 any purported grant of a legal estate to a minor will not be effective to pass the legal estate, but will operate as a declaration that the premises are held in trust for the minor.

This essentially means if a landlord grants a tenancy to a minor, then any purported tenancy is held in trust by the landlord for [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']the occupier who becomes the beneficiary to the trust. In order to end the occupation, the landlord must first end the trust which can be very complex.

The Court of Appeal had to consider how a tenancy given to a minor could be ended. In Hammersmith and Fulham London Borough Council v Alexander-David [2009] EWCA Civ 259, The claimant aged 16 applied to the local authority for accommodation under the Housing Act 1996 because she was homeless. The council discharged its duty and entered an agreement on its standard form for adults, where the parties were referred to as landlord and tenant, which gave her a tenancy of the premises.

It was held that a landlord with full capacity to grant a legal tenancy and who granted a tenancy without any express qualification to the effect that something less than a legal tenancy was being granted could not subsequently say that what he had granted was not a legal tenancy but an equitable tenancy. Paragraph 1(1) of Schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996 therefore applied to the tenancy granted to the claimant.

For so long as the council held the premises in trust under that Act for the claimant it could not lawfully destroy the subject matter of the trust by serving notice to quit on her.

See here for the Times report on this case.

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A tenancy is assured (shorthold) if it is let as a separate dwelling [s.1 HA1988]. The case below although dealing with Rent Acts, deals with the question of dwelling and if a caravan can be a dwelling [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']for the Rent Act 1977, then, it can be a dwelling for the purposes of the Housing Act 1988.

The resident landlord exemption would appear not to apply becuase the landlord must be resident in some other part of the “building”. As a caravan is not part of the “building” (but maybe part of the land) then it seems it is not exempt.

Clearly if the caravan was being used only for the purpose of providing holiday accommodation, then it would be exempt under the holiday lettings exemption contained in schedule 1 Housing Act 1988.

It is an offence to enforce a right of possession without using the courts under section 2 Protection from Eviction Act 1977 against an occupier of a caravan [Norton v Knowles [1969] 1 Q.B. 572.]

R. v Rent Officer of the Nottinghamshire Registration Area (1985) 17 H.L.R. 481

Queen’s Bench Division

Farquharson J.

Introduction

A tenancy can only be a protected tenancy under the Rent Act 1977 , if it is “a tenancy under which a dwelling-house (which may be a house or a part of a house) is let as a separate dwelling …” (Rent Act 1977, section 1) Similar phraseology is to be found in section 28, Housing Act 1980 for the purposes of defining secure tenancies in the public sector. In addition, in order for a contract to qualify as restricted, under Rent Act 1977, section 19, it must be a contract which grants “the right to occupy a dwelling as a residence”, for which purpose “dwelling” is defined to mean “a house or part of a house” (section 19(8) ).

In Makins v. Elson [1977] 1 W.L.R. 221 , it was held that a caravan can constitute a “house” for the purpose of the Finance Act 1965, s. 29 (use of the word “dwelling-house”), where the wheels had been raised and permanent services connected. See also R. v. Guildford Area Rent Tribunal, ex p. Grubey (1951) (unreported, April 19, D.C.) , under section 19, Rent Act 1977 ; see further Norton v. Knowles [1969] 1 Q.B. 572 , as to qualification under the Protection From Eviction Act 1977, where, however, what is in issue is residential occupation of “any premises,” not statutorily undefined.

Local authorities have powers to reter tenancies to the rent officer, of their own motion: see Rent Act 1977, section 68. A question whether or not a letting is a protected tenancy is, among other issues, one over which the county court has specific jurisdiction, even if no relief other than a declaration is sought, under section 141, Rent Act 1977.

Facts

The applicant was the freehold owner of a caravan site at Ollerton in Nottinghamshire. There were concrete pitches or bases for 38 caravans. Each concrete base was occupied by a single caravan, which was not affixed to the base. The caravans rested on their own wheels, and stabilising stands, which were part of the original manufacture. From time to time, the applicant would remove caravans from their bases, in order to carry out repairs and renovations. The whole disconnection operation could be carried out in approximately five minutes.

One caravan, a large vehicle of some 30 feet long, was let to a Mrs. Moore on or about January 23, 1984. The caravan, although fully mobile, was connected to a mains water and electricity supply, and to a sewage pipe. Mrs. Moore was eligible for and receiving Housing Benefit. The local authority were concerned about the level of her rent and applied to the Rent Officer under Rent Act 1977, s.68 . The rent officer registered a rent, but subsequently the applicant disputed his jurisdiction to do so and issued county court proceedings for a declaration that the letting was not a protected tenancy, under Rent Act 1977, s.141 . The applicant also issued proceedings for judicial review.

Held (granting the application)

* (1) It is not possible to say that because the subject-matter of a letting is a caravan, it cannot be within Rent Act 1977 s.1 ;
* (2) Each case must depend on the circumstances of the letting; where the caravan is let as a moveable chattel, it cannot be described as a house; where on the other hand it is rendered completely immobile, either by the removal of its wheels or by its being permanently blocked by some brick or concrete construction, then it is more likely to be regarded as a house in the same way as a bungalow or prefabricated dwelling would be;
* (3) Difficulties will arise when the facts are between these two extremes; it is necessary to have regard to the features of the caravan which may reveal elements of site permanence on the one hand, or immobility on the other, such as whether the wheels are still on the caravan, whether the stabilising struts are of a permanent nature or of a kind ordinarily used by a caravan when moving from site to site, whether there are services attached, and if so whether they are of a fixed nature or readily detachable, whether the caravan is ever moved and if so for what purpose and with what facility;
* (4) Rent officers should be on their guard against landlords who rent out caravans on an estate, on a permanent or long-term basis, and who seek to avoid the controls of the Rent Act by making superficial arrangements tending to show some mobility in their caravans when the reality is that they are permanently based on the site; if the occupancy is such that it is plainly used by the tenant as his or her permanent home, then there is a greater likelihood of the caravan being permanently in place rather than it being used as a temporary expedient; the feature of mobility is not the sole determining factor, but is perhaps more significant than any other;
* (5) In the present case, the movement of the caravans from time to time, and the impermanence of the connection of the various services, established that they could not in reality be described as houses;
* (6) The county court does not have power under Rent Act 1977, s.141 , to order deletion of entries in the Rent Register; landlords who wish to challenge the jurisdiction of the rent officer should do so promptly, and before any entry is made in the Rent Register and if the rent officer is of the opinion that there is substance in the challenge, he can delay making the registration until the question can be determined in the county court; otherwise, the most convenient solution is to abide by the present practice of allowing the entry to remain on the Rent Register, with the rent officer’s endorsement against it that there is no jurisdiction to act upon it. [/amember_protect]

I advertised a property at £450pcm. The particulars showed this amount and so did the advert. On signing the tenancy, the tenant also paid £450 first months rent and £450 deposit. The following month, £357 rent was paid instead of £450 along with a letter pointing out that the tenancy agreement stated the rent was £357.00pcm and this was all they were going to pay from now on. On investigation, I have found I have made a mistake on the tenancy agreement and the rent does state £357pcm when it should have said £450. The tenancy is for twelve months.

A:

Crucially, in this case, it seems there is a good amount of evidence showing that both parties intended the rent to be £450. In particular, this is evidenced by the tenant paying £450 at the commencement of the tenancy.

Unfortunately though, getting this put right is not going to be simple.

Rectification

Rectification is an equitable remedy by which the court corrects instruments in order to give effect to the real bargain between the parties. Courts of Equity do not rectify contracts; they may and do rectify instruments purporting to have been made in pursuance of the terms of contracts. [Mackenzie v Coulson (1869) L.R. 8 Eq. 368, 375, per James V.C.] Thus what is corrected is not the bargain, but the expression of the bargain.

In order for a claim to rectification to succeed[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'] on the ground of a common mistake it must be shown by convincing evidence [Joscelyne v Nissen [1970] 2 Q.B. 86, 98; Lansdown Estates Group Ltd v TNT Roadfreight (UK) Ltd [1989] 2 E.G.L.R. 120; London Regional Transport v Wimpey Group Services Ltd (1987) 53 P. & C.R. 356; Brimican Investments v Blue Circle Heating [1995] E.G.C.S. 18.]:

(1) that the parties to the lease had a continuing common intention in regard to the terms of the lease;

(2) that intention continued up to the moment when the lease was executed;

(3) that the common intention was manifested by some outward expression of accord;

(4) that the lease as executed does not represent the true intention of the parties at the moment of the execution of the lease;

(5) that the lease, if rectified would represent their true intention at that time. [ibid.]

The outward expression of accord may be shown by estate agents’ particulars [Central & Metropolitan Estates v Compusave [1983] 1 E.G.L.R. 60.]

The remedy of rectification requires some mistake in the document sought to be rectified.  Rectification is usually granted where words in a lease have been wrongly omitted or wrongly included. [e.g. Cowen v Truefitt Ltd [1899] 2 Ch. 309 (parcels wrongly described).]

The fact that the mistake was negligent is no bar to relief [Weeds v Blaney [1978] 2 E.G.L.R. 84, CA.] ; nor is a clause which states that the written agreement is the parties’ entire agreement. [JJ Huber (Investments) v Private DIY Co [1995] E.G.C.S. 112.]

Actions for rectification are assigned to the Chancery Division. [Supreme Court Act 1981 s.61; Sch.1.] However, any other Division of the High Court may treat an instrument as rectified if the defendant to an action sets up facts which, in the Chancery Division, would entitle him to have it rectified. [ibid.] A claim for specific performance may be joined in the same action as a claim for rectification.

Correction of errors by construction

In some cases the court is able to correct errors as a matter of construction, without recourse to the remedy of rectification. In order to do so the mistake must be clear. [Wilson vWilson (1854) 5 H.L. Cas. 40.]

The principle applies “where a reader with sufficient experience of the sort of document in issue would inevitably say to himself ‘Of course X is a mistake for Y.’ ” [East v. Pantiles (Plant Hire) (1982) 263 E.G. 61.] Thus the court may correct an obvious misnomer of one of the parties [Nittan (U.K.) v. Solent Steel Fabrications [1981] 1 Lloyd’s Rep. 633.] ; or an obviously erroneous reference to a clause in the lease. [Booker Industries Pty. v. Wilson Parking (QLD) Pty. (1982) 149 C.L.R. 600.]

However, The law of construction excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification [para 11.007 Woodfall Landlord & Tenant].

Therefore, an application for the correction of the error as a matter of construction is most likely not suitable in this case because the key evidence is the adverts and particulars which were essentially the negotiations leading to the execution of the tenancy.

What next

The Chancery Division is part of the High Court and the case will be dealt with by a senior judge. Although the Guild can assist, it would be very advisable to employ the services of a solicitor. Hopefully with an adequate letter before action outlining all the evidence would put off a tenant continuing or defending the claim because there could be high costs involved if they were unsuccessful.

The problem of course is a question of costs. Claims in the High Court such as this can be expensive so a balance will need to be struck over the value of claim.

A cheaper “gamble” would be to take the matter to either the small claims court or issue a section 8 notice on Ground 10 (any amount of rent arrears). This would be issued on the hope that the court would look at the case and make an order to the effect that the full rent is “lawfully” due. Of course, a savvy judge may dismiss the claim on the basis that the tenancy must first be rectified as discussed above. However, because of the relative low cost of brining these proceedings as against a claim for rectification, it may be worth the gamble.

Note: If an agent has made this error, it is our opinion that the landlord will still be entitled to be paid by the agent the full proper rent as this would have been a mistake made by the agent that shouldn’t affect the landlord.

[/amember_protect]

Waller, Longmore and Jacob L.JJ.

Note: This case will only have minor  effect on assured shorthold tenancies

In 1999, the defendant’s father was granted a secure tenancy of a flat by the local authority. At that time, the defendant was living in her own property. In 2002, the father’s health deteriorated to the point where he needed assistance and the defendant stayed with him three nights a week. His health continued to deteriorate and the defendant moved in with him full-time on June 20, 2004. In 2005, the defendant allowed friends to stay in her property and, in early June 2005, let it on a six-month assured shorthold tenancy.

On June 30, 2005, more than 12 months after the defendant had moved into the flat, the father died. The authority commenced possession proceedings which were defended on the basis that the defendant had succeeded to her father’s secure tenancy under s.87, Housing Act 1985, because she had “resided with” him for 12 months prior to his death. The county court judge found that the defendant had occupied the property as her only or principal home for 12 months prior to her father’s death but that she had not “resided with” him for that period. The defendant appealed.

The Court of Appeal [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']dismissed the appeal. Mere physical presence is not enough to amount to “residing with” for the purposes of s.87, 1985 Act; there must – to a significant degree – be an intention which can be characterised as making a home with the tenant; just staying in the property is not enough (Swanbrae Ltd v Elliott (1987) 19 HLR 86, CA). The question of residence is one of fact and degree for the judge; it is not enough to invite an appeal court to assess the facts and degree differently from the way it had been done below; to succeed on appeal, an appellant must show that the judge either had misdirected himself or had reached a conclusion which could not reasonably be reached (i.e. perversity), which the defendant had not done.[/amember_protect]

This is never advisable but yes it is possible [s54 Law of Property Act 1925]

53.- Instruments required to be in writing.

(1) Subject to the provision hereinafter contained with respect to the creation of interests in land by parol-

(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;

…

54.- Creation of interests in land by parol.

(1) …

(2) Nothing in the foregoing provisions of this Part of this Act shall affect the creation by parol of leases taking effect in possession for a term not exceeding three years (whether or not the lessee is given power to extend the term) at the best rent which can be reasonably obtained without taking a fine.

A lease for three years or less at the best rent which can reasonably be obtained without taking a fine may be in writing or parol (verbal)as the parties please. [See Ryley v Hicks (1713) 1 Str. 651; Bolton(Lord) v Tomlin (1836) 5 A. & E. 856; Wright v Macadam [1949] 2 K.B. 744.] A lease for more than three years from the making [Rawlins v Turner (1699) 1 Ld.Raym.736; Kushner v Law Society [1952] 1 K.B. 264.]must be by deed (and in writing). This includes a lease granted for a term exceeding three years, but determinable within three years. [Kushner v Law Society, ante.]

Will a tenancy made by parol (verbal) be an assured shorthold tenancy?

This will depend on the date the tenancy was granted. [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']Clearly if the tenancy was created before the Housing Act 1988 came into force, it will be a tenancy subject to whatever legislation was in at the time (normally Rent Act 1977 or Rent Act 1964). However, if the tenancy was created on or after the coming into force of the Housing Act 1988 (15 January 1989) then there are two possibilities depending on the date.

Tenancy created between 15 January 1989 and 27 February 1997.

Section 1 Housing Act 1988 will apply which states that all tenancies created are assured subject to certain conditions. Clearly it was possible to create an assured shorthold tenancy during this time but not verbally because the section 20 notice was required in writing (section 20 notice was the old style way of granting an assured shorthold tenancy and informing the tenant it was to be at least 6 months etc.)

The main criteria of importance for a tenancy to be assured is that a separate dwelling was let to an individual and it is their only or principle home. If these 3 requirements are met, the tenancy will be assured. (If not, it will most probably be a common-law contractual tenancy)

1.- Assured tenancies.

(1) A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as-

(a) the tenant or, as the case may be, each of the joint tenants is an individual; and

(b) the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home; and

(c) the tenancy is not one which, by virtue of subsection (2) or subsection (6) below, cannot be an assured tenancy.

(2) Subject to subsection (3) below, if and so long as a tenancy falls within any paragraph in Part I of Schedule 1 to this Act, it cannot be an assured tenancy; and in that Schedule-

(a) “tenancy” means a tenancy under which a dwelling-house is let as a separate dwelling;

…

Tenancy created 28 February 1997 to present day.

Section 1 detailed above still applies subject to the criteria discussed (tenant individual, only or principle home etc.) However, the Housing Act 1996 changed things and removed the requirement of a section 20 notice. Therefore, only a tenancy need be granted without any notice prior to it’s grant and it will be an assured shorthold tenancy. It is this act that also removed the requirement of a minimum 6 months fixed term. Section 96 Housing Act 1996 inserted section 19A into the Housing Act 1988. The position now is:

19A. Assured shorthold tenancies: post-Housing Act 1996 tenancies.

An assured tenancy which-

(a) is entered into on or after the day on which section 96 of the Housing Act 1996 comes into force (otherwise than pursuant to a contract made before that day), or

(b) comes into being by virtue of section 5 above on the coming to an end of an assured tenancy within paragraph (a) above,

is an assured shorthold tenancy unless it falls within any paragraph in Schedule 2A to this Act.

Does a tenant have the right to receive a written statement containing the terms of a tenancy if a verbal tenancy has been granted?

Yes [s20A Housing Act 1988 as inserted by s97 Housing Act 1996]. A landlord must supply after a written request by a tenant, a written statement of terms which contain the date the tenancy began, the rent payable, any provision for a rent increase and if there is a fixed term, the length of the fixed term. The landlord must supply this information within 28 days of a request, and only has to do this once if there has been no changes and doesn’t have to provide this statement if the tenancy is evidenced in writing (therefore only applies to verbal tenancies).

20A.- “Post-Housing Act 1996 tenancies: duty of landlord to provide statement as to terms of tenancy.

(1) Subject to subsection (3) below, a tenant under an assured shorthold tenancy to which section 19A above applies may, by notice in writing, require the landlord under that tenancy to provide him with a written statement of any term of the tenancy which-

(a) falls within subsection (2) below, and

(b) is not evidenced in writing.

(2) The following terms of a tenancy fall within this subsection, namely-

(a) the date on which the tenancy began or, if it is a statutory periodic tenancy or a tenancy to which section 39(7) below applies, the date on which the tenancy came into being,

(b) the rent payable under the tenancy and the dates on which that rent is payable,

(c) any term providing for a review of the rent payable under the tenancy, and

(d) in the case of a fixed term tenancy, the length of the fixed term.

(3) No notice may be given under subsection (1) above in relation to a term of the tenancy if-

(a) the landlord under the tenancy has provided a statement of that term in response to an earlier notice under that subsection given by the tenant under the tenancy, and

(b) the term has not been varied since the provision of the statement referred to in paragraph (a) above.

(4) A landlord who fails, without reasonable excuse, to comply with a notice under subsection (1) above within the period of 28 days beginning with the date on which he received the notice is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(5) A statement provided for the purposes of subsection (1) above shall not be regarded as conclusive evidence of what was agreed by the parties to the tenancy in question.

(6) Where-

(a) a term of a statutory periodic tenancy is one which has effect by virtue of section 5(3)(e) above, or

(b) a term of a tenancy to which subsection (7) of section 39 below applies is one which has effect by virtue of subsection (6)(e) of that section,

subsection (1) above shall have effect in relation to it as if paragraph (b) related to the term of the tenancy from which it derives.

(7) In subsections (1) and (3) above-

(a) references to the tenant under the tenancy shall, in the case of joint tenants, be taken to be references to any of the tenants, and

(b) references to the landlord under the tenancy shall, in the case of joint landlords, be taken to be references to any of the landlords.”[/amember_protect]

Abstract: Where a demise consisted of a corner shop with accommodation above, and the shop was found to have been occupied for the purposes of a business, the entire demise was subject to the Landlord and Tenant Act 1954 Part II . T was tenant of premises which had the appearance of a corner shop with accommodation over. When L purported to give T notice of the termination under Part II of the Landlord and Tenant Act 1954, T did not apply for a new tenancy under s.29 of the Act, but contended instead that he had never run a business from the premises and was accordingly a residential tenant and protected by the Rent Act 1977 . The judge decided upon all the evidence that T had for a material and significant time up to the issue of proceedings occupied the shop for business purposes; and he accordingly made an order for possession of the demised premises. On appeal T argued, inter alia, that possession should not in any event have been ordered of the accommodation above the shop.

Held, [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']dismissing T’s appeal, that (1) s.23(1) provides that Part II of the 1954 Act applies to premises part of which are used for the purposes of a business carried on by the tenant; and that, having found the shop to have been occupied for business purposes, the judge had thus correctly treated the entire demises as subject to Part II of the 1954 Act; (2) T’s other grounds of appeal failed.[/amember_protect]

Fixed term tenancies
The general law applies. Where joint tenants hold a fixed term, the survivors become the tenants. If a sole tenant dies the tenancy dissolves according to his will or on intestacy – see below under general law.

Periodic tenancies – joint tenancies
In the case of a periodic tenancy (including a statutory periodic tenancy) held by joint tenants, where one of he joint tenants dies the general law applies and the survivors become the tenants.

Periodic tenants – spouse living with sole tenant
Where the tenant was a sole tenant and immediately before the tenants death the tenant’s spouse was occupying the dwelling house as his or her only or principle home the tenancy vests in the spouse and not according to the tenants will or intestacy. However, the tenancy will not vest in the spouse if the deceased tenant was himself successor as defined in subsection (2) or (3) of section 17 Housing Act 1988. The effect of these subsections is that the tenancy will not vest in the spouse by virtue of section 17.

17. Succession to assured periodic tenancy by spouse
(1) In any case where -
(a) the sole tenant under an assured periodic tenancy dies, and
(b) immediately before the death, the tenant’s spouse was occupying the dwelling-house as his or her only or principal home, and
(c) the tenant was not himself a successor, as defined in subsection (2) or subsection
(3) below, then, on the death, the tenancy vests by virtue of this section in the spouse (and, accordingly, does not devolve under the tenant’s will or intestacy).
(2) For the purposes of this section, a tenant is a successor in relation to a tenancy if
(a) the tenancy became vested in him either by virtue of this section or under the will or intestacy of a previous tenant; or
(b) at some time before the tenant’s death the tenancy was a joint tenancy held by himself and one or more other persons and, prior to his death, he became the sole tenant by survivorship; or
(c) he became entitled to the tenancy as mentioned in section 39(5) below.
(3) For the purposes of this section, a tenant is also a successor in relation to a tenancy (in this subsection referred to as “the new tenancy”) which was granted to him (alone or jointly with others) if -
(a) at some time before the grant of the new tenancy, he was, by virtue of subsection (2) above, a successor in relation to an earlier tenancy of the same or substantially the same dwelling-house as is let under the new tenancy; and
(b) at all times since he became such a successor he has been a tenant (alone or jointly with others) of the dwelling house which is let under the new tenancy or of a dwelling-house which is substantially the same as that dwelling-house.
(4) For the purposes of this section, a person who was living with the tenant as his or her wife or husband shall be treated as the tenant’s spouse.
(5) If, on the death of the tenant, there is, by virtue of subsection (4) above, more than one person who fulfils the condition in subsection (l)(b) above, such one of them as may be decided by agreement or, in default of agreement, by the county court shall be treated as the tenant’s spouse for the purposes of this section.

A homosexual partner can be a spouse for the purposes of section 17. However [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']they will have to show that there as at some point in the relationship a lifetime emotional commitment which was openly and unequivocally displayed to the outside world [Mendoza v Ghaidan 2004 2 A.C. 557] and [Southern Housing Group Ltd v Nutting 2004 EWHC 2982, Ch D].

Periodic tenancy – sole tenant / no spouse entitled to succeed
Where there is no succession of the tenancy to a spouse pursuant to section 17 the tenancy will devolve under the will or on intestacy but the landlord will be entitled to recover possession under Ground 7 if he begins proceedings not later than 12 months after the death of the tenant or, if the court so directs, after the date on which, in the opinion of the court, the landlord or, in the case of joint landlords, any one of them became aware of the former tenants death. The reference to “proceedings for recovery of possession” refers to court proceedings, not service of the section 8 notice (Guild form no. 14). The period of 12 months is therefore calculated from the date the proceedings are commenced [Shepping v Osada 2000 L. & T.R. 489, CA].

Ground 7
Ground 7 is a mandatory ground for possession and so the court must make an order without considering the reasonableness of the landlord’s request for possession.

Ground 7 expressly states that for the purposes of that ground the acceptance by the landlord of rent from a new tenant after the death of the former tenant shall not be regarded as creating a new periodic tenancy, unless the landlord agrees in writing to a change (as compared with the tenancy before the death) in the amount of the rent, the period of the tenancy, the premises which are let or any other term of the tenancy.

Note that if the tenant (i.e. the personal representative or the beneficiary, as the case may be) is not occupying “the dwelling as his only or principle home” the tenancy will cease to be assured and it will not be necessary to rely on Ground 7. The tenancy will be an ordinary common law tenancy terminable by a notice to quit.

The general law or common law tenancy

The death of the tenant does not terminate the tenancy [section 1 and 3(1) of the Administration of Estates Act 1925]. The tenants interest, whether it be for a fixed or periodic term, vests in the personal representatives who are liable to pay the rent from the estate [Youngmin v Heath 1974 1 A11 E.R. 461].

Where the tenant has left a will and the named executors are alive and prepared to administer the estate, the tenancy will vest in them from the date of death if they have obtained a grant of probate [Re Crowhurst Park 1974 1 W.L.R. 583]. Where there is a will but no executor with power to obtain a grant the estate vests in the Public Trustee [section 9 Administration of Estates Act 1925 (as amended)]. Where the tenant died intestate the estate vests in the Public Trustee until administrators are appointed [s9 Administration of Estates Act 1925 (as amended)].

Section 9 reads
(1) Where a person dies intestate, his real and personal estate shall vest in the Public Trustee until the grant of administration
(2) Where a testator dies and-
(a) at the time of his death there is no executor with power to obtain probate of the will, or
(b) at any time before probate of the will is granted there ceases to be an executor with power to obtain probate the real and personal estate of which he disposes by the will shall vest in the Public Trustee until the grant of representation.
(3) The vesting of real or personal estate in the Public Trustee by virtue of this section does not confer on him any beneficial interest in, or impose on him any duty, obligation or liability in respect of the property.

Once letters of administration have been granted the estate vests in the administrators from the date of the grant. Their title to the property does not relate back to the date of the death as with executors [Long (Fred) and Sons Ltd v Burgess 1950 K.B. 115].

The beneficiaries become entitled to hold the tenancy when it has been vested in them by an assent [s36 Administration of Estates Act 1925]. If the title is registered the beneficiary should register as proprietor [s41(4) Land Registration Act 1925].

As a periodic tenancy continues notwithstanding the death of the tenant, failure to terminate the tenancy by notice to quit will leave the tenancy in being [Wirral Borough Council v Smith and Cooper 1982 43 P.&C.R. 312 – landlord unable to bring possession proceedings against squatters because of failure to determine the periodic tenancy].
Although the death of the tenant does not automatically terminate the tenancy it may give the landlord the right to forfeit the lease if there is a forfeiture clause in the agreement allowing him to do so. It is of course safer to issue a notice to quit.

Service of notice to quit (Guild form no. 16)
Where the tenant was an individual who has died service of the notice to quit will depend upon various factors.

If there are executors
If there are executors of the tenant’s estate the notice should be addressed and served on them. Doing a probate search can discover their names. Information on how to carry out the search can be seen at http://www.hmcourts-service.gov.uk/cms/1226.htm.

Executors but no grant filed If there are executors but no grant has been filed at the Principle Registry (so that the names of the executors are not known) the notice may be served on the Public Trustee [s18(1), (2) Law of Property (Miscellaneous Provisions) Act 1994].

No executors or tenant died intestate
If there are no executors or if the tenant died intestate and no administrators have yet been appointed the property vests in the Public Trustee and (subject to anything in the agreement) the notice to quit should be addressed to “The Personal Representatives of” the deceased (naming him) and left or sent by post to his last known place of residence or business in the United Kingdom and a copy of it, similarly addressed, should be served on the Public Trustee at the Public Trust Office, 81 Chancery Lane, London, WC2A 1DD (020 7911 7127). See later for extract of s18 1994 Act.

The Public Trustee keeps a register of all notices served on him. To enter a notice on the register it should be accompanied by Form NL(1) of The Public Trustee (Notices Affecting Land) (Title on Death) Regulations 1995 (SI 1995/1330). The practice note accompanying s18 and provides assistance on completing the form is located here http://www.all4landlords.com/guidance/practicenotedeathoftenant.pdf

The Public Trustee website is here
A search of the register may be made against the name of the deceased person by using Form NL(2). In the event that the search shows an entry a copy of the document will be sent to the person requesting the search [reg4 1995 regulations].

Personal representatives been appointed
Once personal representatives have been appointed any notice to quit should be served on them. In order to discover their names the landlord can lodge an application for a standing search at the Probate Registry. A standing search is valid for six months, and if a grant issues within that time, you will automatically receive a copy of the grant and a copy of the Will. You may extend a standing search for further six month periods until you either receive a copy or conclude that a grant is unlikely to be taken. See this website for further details http://www.hmcourts-service.gov.uk/cms/1226.htm.

Vested in beneficiaries
Once the property is vested in beneficiaries the notice to quit should be served upon them [s36 Administration of Estates Act 1925].

Sections 17 & 18 Law of Property (Miscellaneous Provisions) Act 1994
Notices affecting land: absence of knowledge of intended recipient’s death.
17.—(1) Service of a notice affecting land which would be effective but for the death of the intended recipient is effective despite his death if the person serving the notice has no reason to believe that he has died.
(2) Where the person serving a notice affecting land has no reason to believe that the intended recipient has died, the proper address for the purposes of section 7 of the [1978 c. 30.] Interpretation Act 1978 (service of documents by post) shall be what would be the proper address apart from his death.
(3) The above provisions do not apply to a notice authorised or required to be served for the purposes of proceedings before—
(a) any court,
(b) any tribunal specified in Schedule 1 to the [1992 c. 53.] Tribunals and Inquiries Act 1992 (tribunals within general supervision of Council on Tribunals), or
(c) the Chief Land Registrar or any district registrar or assistant district registrar;

but this is without prejudice to the power to make provision in relation to such proceedings by rules of court, procedural rules within the meaning of section 8 of the [1992 c. 53.] Tribunals and Inquiries Act 1992 or rules under section 144 of the [1925 c. 21.] Land Registration Act 1925.

Notices affecting land: service on personal representatives before filing of grant.
18.—(1) A notice affecting land which would have been authorised or required to be served on a person but for his death shall be sufficiently served before a grant of representation has been filed if—
(a) it is addressed to “The Personal Representatives of” the deceased (naming him) and left at or sent by post to his last known place of residence or business in the United Kingdom, and
(b) a copy of it, similarly addressed, is served on the Public Trustee.
(2) The reference in subsection (1) to the filing of a grant of representation is to the filing at the Principal Registry of the Family
Division of the High Court of a copy of a grant of representation in respect of the deceased’s estate or, as the case may be, the part of his estate which includes the land in question.
(3) The method of service provided for by this section is not available where provision is made—
(a) by or under any enactment, or
(b) by an agreement in writing,
requiring a different method of service, or expressly prohibiting the method of service provided for by this section, in the circumstances.

Housing Benefit – Death of claimant
There is no provision to award HB following the death of the claimant. HB must cease at the end of the benefit week containing the date of the death [reg79(1) Housing Benefit Regulations 2006]. If the claimant has a surviving partner, her or she may make their own claim, but it is not covered by their deceased partner’s claim. Also the fact that the estate of the deceased may be required to pay for a notice period on the property does not mean that the deceased (or the estate) is somehow still entitled to HB.

Where the landlord is receiving HB, he shall be under a duty to notify the local authority in writing of a change of circumstances i.e. the tenants death [reg 88 Housing Benefit Regulations 2006].

Payment of HB on death of person entitled.
If the claimant dies but the authority has already decided to make payment direct to the landlord, any benefit up to the amount of any rent outstanding must be paid to the landlord. To qualify, the landlord must make a written request to the authority within 12 months of the claimants death [reg 97 Housing Benefit Regulations 2006].[/amember_protect]

In this case the defendant was in fact a statutory tenant by succession but the same principles apply. The landlord contended that she had ceased to occupy the dwelling as her home and so had ceased to be a statutory tenant.

The tenant contended that the behaviour of a new neighbour had been so upsetting that she was “driven out”. Thereafter she spent a considerable amount of time at a friend’s house some five to ten minutes’ walk away. She took her meals there, took baths there and washed her clothes there. However, the judge found that the dwelling was still her home and [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']that she was merely a guest at the friend’s house. She continued to sleep in her home two or three nights a week, and visited the property daily. He therefore found that she still had a sufficient connection to the property and continued to be the statutory tenant. The judge said this:

“In my judgment, the correct answer to [the preliminary issue] which is, as the cases make clear, essentially a jury question or one of fact and degree -and in this case I consider it to be essentially one of degree – is that Miss Stephens has not ceased to occupy No. 6 as her home. It has been her home all her life. Although her new arrangements have reduced the importance of No. 6 to her as a place to resort to, her connection with it is still sufficiently great that she still occupies No. 6 as her home, or as her residence.”

The landlord’s appeal to the CA was dismissed. The judge rightly directed himself that the issue raised the question of fact or degree which required to be approached in a commonsense way. Adopting that approach, he then proceeded to address the issue carefully and conscientiously.

Stephens v Kerr [2006] EWCA Civ 187[/amember_protect]

(1) A landlord of premises to which this Part applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant.

No rent payable by tenant on failure to supply name and address

(2) Where a landlord of any such premises fails to comply with subsection (1), any rent, service charge or administration charge otherwise due from the tenant to the landlord shall (subject to subsection (3)) be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection.

However, a failure to give notice under the Landlord and Tenant Act 1987 s. 48 does not [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']deny the landlord the right of ever claiming back the overdue rent.

Lindsey Trading Properties Inc v Dallhold Estates (UK) Pty Ltd (1995) 70 P. & C.R. 332

Abstract: Failure to give notice under the Landlord and Tenant Act 1987 s. 48 does not deny the landlord the right of ever claiming back the overdue rent. The tenant of an agricultural holding which included several properties failed to pay rent. L gave notice to pay and, when he remained unpaid, gave notice to quit. At first instance the judge held that as notice had not been served under the Landlord and Tenant Act 1987 s. 48 , the rent claimed was not due, and the purported notices to pay rent were invalid. Consequently L could not give notice to quit for non-payment of rent. L appealed.

Summary: Held, allowing the appeal, that although no notice satisfying s. 48 had been given prior to December 1991, s. 48 did not provide that such a failure destroyed the right of the landlord to claim rent due before the service of such notice. Once the notice of December 1991 had been served, all the rent then accruing became due and the statutory purpose of the notice was satisfied.

Name and Address in section 21 notice is sufficient

In Drew-Morgan v Hamid-Zadeh (1999) 32 H.L.R. 316 a section 21 notice gave the tenant the required information without limitation or qualification and so was held to be sufficient for the purposes of s.48. However, a name and address in a possession summons was not sufficient because the information was given solely for the purposes of those proceedings.

Name and address in tenancy agreement held to be sufficient

The landlord satisfied the requirements of s.48 where  its name and address (in England) was included in the tenancy agreement without any specific statement that it was an address for service of notices. [Rogan v Woodfield Building Services Ltd (1995) 1 E.G.L.R. 72. CA].[/amember_protect]