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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hello, my quesion relatesto a new assured shorthold tenancy

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Hello, my quesion relatesto a new assured shorthold tenancy agreement which my landlady wants me to sign. If I can give you a brief history before I move on to the problem. My wife left me December 4th 2010. I met a lady called xxxxxxxxxxxxx whose husband had left her a year prior to that. We met in The March of 2011. xxxxx asked me to move in with her in April 2011. In September of 2011 xxxxwas diagnosed with Cancer. After all the chemotherapy and radiotherapy Sarah eventually died 14th May 2013. xxxxx Landlord in 2003 was Major xxxxxxx who drew up a simple one page document. The Major died two years ago and the management of xxxxxxxxx fell to his Wife who is ninety two and his daughter xxxxxxxxxxxx who manages the estate on her Mothers behalf. I am not named on this simple one page document as it was written up for xxxxxxxxx and her then huband xxxxxxxxxxx. Miss xxxxxxxxx had always presumed that the property which is a park home with full planning permission was xxxxxx. The property prior the one that is here now was a dilapidated caravan called FRAMM II. The simple one page agreement states The Major was happy to rent the caravan known as FRAMM II at a rent of £250.00 per month with reviews at three year intervals. xxxxxxx was allowed to replace the caravan with the current park home by The Major.Although xxxxxxxx replaced the caravan with the park home at a cost of £30,000 the property was still considered to be owned by Horam Manor Farm. Sarah knew this but Miss xxxxxx did not. Since finding this out Missxxxxxxxxx has decided that I must sign a new agreement as I was not on the original. The new document goes to eight pages. One of the clauses that concerns me is that "the lanlord reserves the right to re-enter te property if (a) the tenant is declared bankrupt under the insolvecy act 1986". Miss xxxxxxxxx knows that I am in financial diffculty at the moment. I have never missed a rent payment since Sarah's passing as The council pay both rent and council tax. Another covenant is "The Landlord shall allow the Tenant Quiet enjoyment of the property without any interruption by The Landlord, save that The Landlord has at any time the right to move or relocate The Property to another part of Horam Manor Farm subject to prior agreement with The Tenant". There is nothing about who will pay for the inconvenience or reconnection of water, electricity or any other utilities whilst this work goes on. I can send copies of both the original agreement and the proposed on if you wish. Many thanks. S xxxxx XXXX

Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

 

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask why it is believed that the estate would own xxxxx caravan if she paid for it please? The estate would need to evidence of their ownership if this is their contention?

JACUSTOMER-yne12kvu- :

It was agreed that xxxxxx could rent the delapidated caravan for £250.00 per month.If she wanted to replace it with a more modern unit that was up to her but se was still renting FRAMM II.

Joshua :

Thanks. And this was agreed in writing? What happened to the original caravan?

JACUSTOMER-yne12kvu- :

It was removed from the site and disposed of. xxxxxx paid for the planning permission and all the works to have the park home installed

Joshua :

Thanks. Did xxxx make a will? If so do you know is you were named as beneficiary of any of her estate?

JACUSTOMER-yne12kvu- :

xxxxxx died intestate. She did, however, sell the park home to me at a nominal £200.00 for which a contract wa drawn up and witnessed when we both signed the agreement

Joshua :

Thanks. Have you asked the estate for written evidence of their claim to own the park home in question?

JACUSTOMER-yne12kvu- :

They do not have any evidence of this save a copy of the original one page document drawn up by Major xxxxx

Joshua :

Thanks. On that basis I do not consider that you should accept their contention that the new park home is owned by them. In my view, it is an extraordinary contention to assert that they have a claim to ownership of a £30,000 park home purchased by xxxxxxxx. The basis that she paid for the park home and you have evidence that the same was transferred to you for a nominal sum you refer to, it seems to me that you should consider yourself to be the owner of the actual home itself and of the estate wishes to content otherwise then it would need to provide substantive evidence of its right to ownership which would in the circumstances need to be very substantive indeed.

Joshua :

I think you need to be extremely careful before signing any form of document here because it is important that you do not sign anything that suggests you accept that the estate owns the park home itself. it seems to me, the first step before signing a form of tenancy agreement would be to contact the estate and advise that you are the owner of the Park home and you have written documentation to demonstrate this. You will of course be happy to pay rent for the plot itself but ownership of the Park home structure lies with you.

Joshua :

I mus apologise that I have to step away to attend an appointment. Would it with your permision be posible to continue this a little later this evening after 7pm?

JACUSTOMER-yne12kvu- :

The problem with that is is that I am claiming rent from the Weaden District Council and council tax as they believe the property is rented. If they thought it was only the land that was being rented I would not receive the amount of benefit I currently receive. This is the dilemma I have because if Miss xxxxx was to inform the council that I am indeed the owner I would lose all my benefits and I presume face charges of fraud

JACUSTOMER-yne12kvu- :

I am here if you are ready to resume

Joshua :

Hello

Joshua :

Thanks for your patience - my apologies for the delay in reverting to you. Just reading through your last post...

Joshua :

Have you actually confirmed to the council that you are just a tenant of the park home as opposed to the owner? If you have could you afford to potentially repay such benefits you have perhaps incorrectly received?

JACUSTOMER-yne12kvu- :

When I originally applied for rent and coucil tax I said that xxxxx owned the park home. The council replied that would they would only pay a certain amount for the rental of the land. Sarah said when we received this reply that she did not own the park home as she replaced the previous caravan for her own reasons because she wanted to live near to her business premises which was a riding school and livery business. We appealed on these grounds and were granted full rent and council tax. This has been the case for some two years now

Joshua :

Thanks. OK this would appear to need to be broken down in order to consider the same properly. On the one hand it appears likely that you do likely own the park home you in question unless the estate can adduce some form of agreement demonstrating that xxxxxxxxxgifted it or otherwise transferred it to them which would be most surprising. On the other hand you have potentially been receiving benfits over and above what you are entitled to from the council on the basis that you do own the park home.

If we can first consider the benefits. Your ownership of the park home is a matter of fact. Either you do own it or you do not - from what you say above it would appear that you do - and accordingly if the council discover evidence that you do in fact own the park home then they may pursue you for fraudulently obtaining benefits. If you do own the park home you could however by contrast notify the council of the position. If you notify them rather than them find you out then you should not be accused of or prosecuted for benefit fraud because in order to prosecute someone for benefit fraud, intent to defraud must be proved. If you notify them of your error, then they cannot show intent and beyond that the situation is most unusual and you would likely be able to reasonably justify your confusion about ownership on the basis that the estate was claiming it owned the park home which you believed until you sought advice to the contrary. Of course it does not change the fact that benefits that may have been overpaid would have to be repaid.

Accordingly it is the failure to inform the council that leaves you open to potential prosecution. Therefore it seems to me that you have a choice of whether you consider it would be better off for you to seek to claim ownership of the park home which would seem to be perfectly feasible with the risk that you will likely have to repay overpaid benefits; in the alternative given the circumstances, you may be able to fudge that you genuinely believed that the estate owned the park home and leave it on the understanding that they do. If this is your preference you could potentially be caught out by the council but the risk is probably limited in the circumstances but of course it follows that the park home not be yours which is a valiable asset from what you say. .

Joshua :

Clearly you will need to weigh up the two options. Both have their pros and cons financially it seems - and you may wish to compare the relative advantages and disadvantages of each financially. If you decide to proceed on the basis of the status quo that the estaet owns the park home then in terms of the agreement you have been asked to sign, the bankruptcy provision is a standard provision in lease agreements usually. You can ask that it is removed if you have concerns in this respect. It means that if you are declared bankrupt the tenancy can be ended.

Joshua :

The provision about moving the park home is not one that strikes me as needing concern because it is expressed to be subject to your agreement.

Joshua :

If the landlord were to move the premises in agreement with you the landlord would have to supply connections to similar services to that which you currently enjoy at any new location.

JACUSTOMER-yne12kvu- :

I am not that concerned about ownership of the property. I am more concerned about the clauses in the agreement. Do you think it would just be better to negotiate with miss xxxxxx ?

Joshua :

Thanks. Noted. I have dealt with the various clauses you refer to above. Based on what you say the only significant issue you identify to my mind is that if you are concerned that there may be a risk of bankruptcy you may wish to request that this clause is removed so that the tenancy would endure in the event you are made bankrupt providing rent continued to be paid.

Joshua :

Are you happy with the information I have provided to you above or is there anything above I can clarify for you any further?

JACUSTOMER-yne12kvu- :

Thankyou, I will endeavour to re-negotiate the terms of the tenancy agreement. There is also the clause that she can move the park home with my agreement but with nothing written down as to who will bear the expenses.

Joshua :

A pleasure. Re the moving of the home, I hope you have been able to view my posts on tha above. Essentially if the landlord wishes to move the home the clause proposed provides that this requires your agreement. Accordingly you would be free in the event to negotiate such conditions you consider appropriate however in any event the landlord would bear the costs of moving the home and disconnecting and reconnecting any services unless the move was at your request in which case you would.

Joshua :

Is there anything above I can clarify or assist you with any further?

JACUSTOMER-yne12kvu- :

Thankyou, you have been extremely helpful.

Joshua :

I am glad I could be of some assistance. Thanks again for your patience during the "interval". If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

JACUSTOMER-yne12kvu- :

Thank you, XXXXX XXXXX off now and give you a glowing report.

Joshua :

Many thanks. Best wishes

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Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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