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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.
Do I understand correctly that your parents first took the tenancy and paid rent until they moved out in Jun 1989 whereupon you started paying the rent in their place please?
If this is correct was landlords consent obtained for your taking over the tenancy?
Yes to both questions. In fact, the landlord's consent wasn't directly sought, becausebut their agents happily accepted
Sorry, I hit return while editing - please ignore that reply, I'll prepare another...
Thank you. Do you still have any evidence that the agents gave permission for you to take over the tenancy in correspondence or otherwise?
The landlord's consent wasn't directly sought, because at first we continued to regard it as a joint family home. It was a few years later when we considered our parents had permanently moved out, that we informed the agents, who accepted the position and continued to charge the same rent.
As for "permission", we have correspondence with the agents, sometimes addressed to "Mr and Mrs Riley", sometimes to "J Riley" (myself), sometimes to "Mr and Mrs J Riley" (I'm not married), as if they were not concerned with the difference.
Thanks. Do you have any correspondence that indicates that they were aware of the change of person paying rent?
Not in so many words, no. That was never the topic of any correspondence.
Addressing letters to "J Riley" seemed to suggest they accepted I was now the main resident.
Thank you. Finally could you confirm if it is clear or would be possible to establish that it would likely have been clear from financial evidence (albeit not likely still available) that there was a change in person paying rent?
The rent was always paid (and still is) by standing order from the same account. The account was in my parents names to begin with, and we added my name to it later on, so I was able to administer it in their absence (not only for rental purposes). I paid cheques or cash into that account from my personal account.
I see. Thank you. Finally are your parents willing to cooperate fully with you in the matter?
Yes. Of course, as they no longer live there (and are quite happy where they are, very elderly now), they are not as concerned as I am about the property itself. They certainly have no desire now to ever move back. But of course they support me in wanting me not to lose my home!
Thank you. There are two stances to take with this - either you contend that the tenancy is still in your parents name or that it has been transferred to your. The former would not appears to be sensible because from what you say your parents moved out many years ago and have no intention to return. Accordingly as it is not their primary residence this puts the regulated tenancy at risk potentially.
Accordingly your contention will presumably be that you took an assignment of the tenancy from your parents in or around June 1989. You would not want to contend that you took a new tenancy in your own name because this would then be an assured tenancy. It is important that you show that you took an assignment of the previous regulated tenancy.
Yes, I see. I presume it makes no difference that I've been in residence there myself since before 1989 (although admittedly not long before)?
Did you pay any rent before Jan 1989 from a joint account or otherwise?
Sorry I replied before I saw your second paragraph. Does an "assignment of a regulated tenancy" confer more rights than an assured tenancy, in regard to how (and how much) the rent can be increased?
My name was not on the joint account until sometime in the 1990s. Before 1989 I would simply have given my parents a contribution.
Thanks. When did you commence paying rent personally - even if this was from a joint account? Would it have been 1990s?
I started paying in June 1989, but only in the sense of paying into what was then still my parents' joint account, to enable the standing order to the agents to still be paid.
An assignement requires normally a deed of assignment to be completed successfully. Obviously after so long it would not be unusal for such documents to have gone missing. It would be helpful to your position if there was some memory of having signed a deed of assignment albeit the actual document may have gone missing.The important distinction between an assignment and your startin a new tenancy is that with an assignment you take over an existing tenancy. With a new tenancy you take a new tenancy under whatever rules were in place at the time you took it. Accordingly you almost undoubtedly have an assured tenancy as you have clear evidence that you have lived in the property and paid rent personally albeit perhaps from a joint account since circa 1990 from what you say. Ideally you are seeking to establish that you have a regulated tenancy. To do this you would need in my view to establish an assignment took place of the tenancy for which you would normally need to show permission and a deed of assignment. As above it would not be unusual for documents to have gone missing after so long but ideally you may be able to provide a statement indicating that you had a memory of agreeing an assignment and signing a deed of assignment perhaps producing correspondence that you have that is helpful in this respect. It would be up to the property tribunal to decide who it believes in the circumstances - the proof required is the balance of probability which is not an overly high hurdle
If you are unable to provide any evidence of an assignment of your parents regulated tenancy by your statement or otherwise, then you have a potential problem if you cannot show that you paid rent in your own name prior to Jan1989. If you cannot then there is a risk that you will be deemed to have taken on a new tenancy at the time you can show you paid rent which if after Jan 1989 (as is the case here) would be deemed to be an assured tenancy.
Accordingly you will likely need to give the issue of showing that you took an assignment on the balance of probability some significant thought.
I see. If we had been aware of the law at that time, no doubt we'd have arranged for such an assignment!
Oops, hit return again by mistake.... further reply follows...
You may find on further reflection that you in fact did take an assignment after having given it some further thought. For an assignment to be lawful, you need to show that you had the right to assign a tenancy (if there is no prohibition in the tenancy agreement you do); where there is a prohibition then the landlord’s permission is required, and finally a ‘deed of assignment’ Obviously after so many years tribunals are well used to little or no documentation being produced and where this is the case must infer what happened by parties statements and such further evidence as they are able to produce.
Thanks. XXXXX mentioned, there are no tenancy agreements of any kind in writing; the oldest document in the file is an old rent-book, of a standard kind you'd get from a stationery shop, with the terms on the inside cover crossed through, and no specific terms for our tenancy; just recording what were then weekly cash payments. No doubt any assignment document could have disappeared along with much other stuff. Would sworn statements from my parents be of use?
This would not be unusual in these circumstnaces. In these cases tribunals will look at statements of parties and any supporting correspondence and documents there may be. You and your parents can provide affidavits of your respective positions having taken time to consdier the above carefully.
So do I take it that such affidavits would - or could - over-ride the issue of the post-Feb-1989 change of occupancy? I realise the answer may not be clear cut. As I may have said, a small increase in rent is reasonable, but I need some way of fighting the figure they want to impose. If it turns out the judgement goes in their favour - that it's not only an assured tenancy, but also a much higher rent is considered fair by the assessors - I presume they can't hike it to the maximum figure right away? What's the most they can increase it by, month on month? Sorry if this is an additional question, but I'd like to be prepared for the worst.
There is no clear cut answer here because of the lack of evidence. With so little evidence the tribunal have to make judgements on the parties statements and such corredpondence as exists. Ideally you would be able to establish that you took an assignement of the the tenancy as above. If you cannot establish an assignment n the balance of probability then you will be dealing with an assured tenancy and are limited to arguments regarding the appropriate level of rent due under an assured tenancy.
Does the above answer all your questions or is there anything I can clarify or help you with any further?
I think that's probably as much as you can help with, or at least as much as I can reasonably ask here.
Damn - hit return again! I meant to say thanks very much for your help.
A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me
I wish you every success with your application