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Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 34105
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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"Having an Estate or Interest in the Premises"

Resolved Question:

"Having an Estate or Interest in the Premises" (No Will, No Inheritance Process, intestacy rules?, Housing Act 2004). Letter from the Council "NOTICE REQUIRING PRODUCTION OF DOCUMENTS", House of Multiple Occupancy...

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A friend (woman) of ours died in India in 2009. I have been looking after her house (in her sole name at Land Registry and no mortgage) since about then. It is a large house that I rent out by the room (House of Multiple Occupancy). The family (husband and kids) have not initiated any inheritance process in the UK or elsewhere and for reasons they seem unwilling to share with me do not want to. The owner left no Will. As I operate an HMO I asked the Council for application forms for an HMO licence. The Council have been around to inspect and have OKed everything from safety etc perspectives. However, the form must be filled out by the owner - but the owner is dead. The primary purpose of the forms (given we have passed safety etc inspections) seems to be to check if I am a "fit and proper person". It therefore seems very wrong for me to fill out the form as if either I or any of the relatives were the owners of the house - Lying does not seem the correct approach to confirm I am fit and proper. I have explained my predicament to the Council umpteen times in full clarity. The law states that I must ask for an application form. Then the Council must provide me with a suitable application form - and this is where we get stuck - the Council are unwilling to amend their application form to allow me to apply for an HMO licence in the circumstances and the family are unwilling to go through the inheritance process. I have made it clear to the Council that I am in control of the house and the HMO running within. I am the only person who has ever allowed them in... Today, however, one of the family members (widower) received a letter from the Council "NOTICE REQUIRING PRODUCTION OF DOCUMENTS" stating that they believed the family member to be "a person who has an estate or interest in the premises known as..." and demanding a copy of the owner's death certificate, birth certificate, tenancy agreement and any written agreement regarding the management arrangements of the above property. I have already given the Council a copy of her (Indian) death certificate. The family have none of the other documents. Are any of them (widower) "a person who has an estate or interest in the premises known as..." - they have not claimed any of the estate in any way that they or I am aware of. Is there some way they get the estate foisted onto them as relatives even if they don't want it and/or have never asked for it? I am concerned that if they admit to having any estate or interest in the property, that the Council will hold them liable for not having a licence etc up until now. It would seem, therefore, this should be denied until and after which point they choose to engage in any inheritance process. Is this correct? Of the 4 documents being demanded, I have already provided 1 (death certificate) and they have none of the others. How should they respond to this letter - a terse "We have no estate or interest in this property and no documents demanded beyond those you already have" I am aware that they potentially have an interest in the property - as widower the father has first pick at this cherry if he wants it. All advice to me to date is that unless he initiates this process, it won't happen. Can you advise me on how they (and I) should respond to this letter?

To Recap:

[1] Are any of the family people who have estate or interest in this premises?

Derived from: http://www.legislation.gov.uk/ukpga/2004/34/section/235 (section 7)

Can the Council unilaterally assert the widower is a person having an estate and interest in the premises, or do they have to prove it?

[2] How should the family respond to this letter?

a) From the point of view of not being owners of the house or seeming to want to engage in any inheritance process (for reasons I cannot begin to explain).

b) From the point of view that they don't want to be held liable for running an HMO without licence while this mess is cleared up

c) From the point of view that they do not have any of these documents, except the death certificate which I have already provided the Council.

ENDGAME

[3] Are they trying to force an inheritance process to take place - whether the family want it or not? Can this be done? How?

[4] Can the family be held liable for a lack of HMO Licence while this mess continues?

I have stated to the Council that I am the sole controller of the property. They have told the Council that the property belongs to their mother/wife and that I am in control of it and all questions should be directed at me. The Council's position now (not before) is that I am not the controller, that the family is and that they will only talk to the controllers.

The Council have not issued this notice to the Controllers, Managers, Proposed Licence Holders, Occupiers… but instead to the person having an Estate or Interest in the premises.

I suppose the Council have 2 motives 1) To force an inheritance process to happen (They want the birth and death certificates) 2) To force them to acknowledge control of the house

Thanks

Submitted: 2 years ago.
Category: Property Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question
My name is Clare
I shall do my best to help you but I need some further information first.
How much is the property worth?
Clare
Customer: replied 2 years ago.

Less than £250,000 - probably about £170,000

Expert:  Clare replied 2 years ago.
Hi
In that case under the UK intestacy rules the property passes to her spouse.
Whether the Estate has been dealt with or not does not change that - only the widower specifically refusing the inheritance will do that
Accordingly to deal with the queries in order
1. The widower is indeed a person who has "an estate or interest in the premises"
2. They should give the details of the Widower who is the beneficial owner and he should also provide his written authority for you to deal with matters on his behalf
3. The council has no concern about the estate - they just wish to deal with whoever is the legal owner in accordance with the law
4. Yes.
There is nothing you can do except inform the Widower of the position and let him decide what he wishes to do.
Please ask if you need further details
Clare
Customer: replied 2 years ago.

They have asked for 4 documents. 3 do not exist. 1 has been given to them already. Do they really need to repeat this? Do they really need to go to the Police station all the way down in South Manchester to provide the only document they have that they have already provided?

Thanks

Expert:  Clare replied 2 years ago.
Hi
Why can they not produce the Birth Certificate?
Why can you not provide details of the tenancy agreements?
Clare
Customer: replied 2 years ago.

She never had a birth certificate - she was born in a vilage in India where such things were never given.

I was just asked by the family to carry on looking after the property for her for the time being. We never put it down on writing

Expert:  Clare replied 2 years ago.
Hi
But what about the agreements you made with the tenants - were they not in writing?
Clare
Customer: replied 2 years ago.

The letter is not asking me for my agreements (which I don't have in writing anyway). It is not addressed to me.

It is asking for their agreements - they have none

This has been a very ad hoc arrangement pending inheritance.

I am struggling with the notion of who is in "control" of the building. I'm looking after it for the deceased lady and I have control over everything. Nobody else has keys or right of access. It has all been left to me to deal with everything. I have tried to apply for an HMO licence, but can't even fill out the form...???

Expert:  Clare replied 2 years ago.
Hi
In that case you need to consider your position very carefully.
The fact is that you are acting on behalf of the Owner - the Widower of the currently named owner
You are however operating a House in Multiple Occupation - without the appropriate license in place.
That being the case you are putting yourself at risk of prosecution since you are the one doing the letting.
The family need to decide how they wish to proceed.
If they wish you to continue dealing the matter on their behalf then they need to produce written authorisation for you to do so
This shoudl be signed by The Widower who should also provide a copy of the Marriage Certificate which will confirm his entitlement to the property - no other action would need to be taken.
Clare
Customer: replied 2 years ago.

[1] What should the Widower do in response to the Notice Requiring Production of Documents? The Council already have the only one he has?

[2] I had tried again again to apply for an HMO licence but was unable to get past the hurdle of filling out the form and advice (from a different JusdtAnswer solicitor) stated that the Council had to amend their forms to "suit" my situation. HMO Inspectors have been around twice and OKed everything (They picked up some minor problems, but couldn't even be bothered to come around again to check on them)

[3] A few minutes ago I received my own NOTICE Requiring Documents by 4th Sept'14

They already have all the documents on the list that exist

- Current Gas Safety cert (I think there may have been a new once since I last gave it to them)

- Current Fire detection system cert

- Portable Appliance Cert (I self-test as I am allowed)

- Current Tenancy Agreement (with who?)

- Any Written agreement re Management arrangements between owners and myself (none exist)

NB: I have long since made my desire to have an HMO licence for this property crystal clear to the Council - but in the last email they sent me they refused to talk to anyone but the "Controller" of the property in the future and stopped responding or writting to me (months ago)

Andrew

PS: Thank you for all your help - It will be appreciated at the end

PPS: I have an HMO licence for another nearby property being processed at present and have helped a friend get an HMP licence on another property - it's not like I avoid the things

Customer: replied 2 years ago.

None of the family can make it to the Police Station by 4pm today as requested. They intend just to email the officer with another copy of the death certificate and say they have nothing else.

The HMO office are "paperless" - ie: they normally prefer you to email in scanned copies of applications and supporting documents as anything received by post (or hand) is just scanned in and shredded.

Is this an advisable course of action for them - They do not seem overly concerned about all the legal threats for non-compliance in the letter - I think that have had many in the past for different things and little has ever come of them (bluff). Remember, the house has already been inspected and deemed safe - we are arguing about who gets and pays for the licence

Customer: replied 2 years ago.

It would seem that the house may not be her ownly asset. Does the house automatically become the property of the husband if the House + other Assets amounts to more than £250,000?

Expert:  Clare replied 2 years ago.
Hi
Whether or not it has been inspected a Licence os required - and without it you must not let the property out.
It is for the family to deal with this matter - they are free to ignore the requirement if they wish - it is for them to face the consequences - however remember if YOU let the property to anyone as their agent then you too may face prosecution
The Husband gets the first £250,000 and a life interest in half the remainder and is the person entitled to apply for Letters of Administration
Either way he is liable
Clare
Customer: replied 2 years ago.

Forgive me for dwelling on this point, but it is key to my own liability risks.

You say the law forces ownership (and responsibility) of the deceased wife's house on the husband automatically and that he must specifically refuse such inheritance if he does not want it

A previous solicitor on this website told me that the Admin of Estates Act gives the husband the right to be the owner etc, but not the obligation.

My amateur reading of the law suggests that there is an assumption that the husband / family would always want the assets, but I can see no place where it forces the assets (and responsibility) on the husband - just gives him right to act as personal representatives, administrators etc.

As far as I can see it, until the husband acts, the estate remains in limbo.

The husband has refused to act. His refusal to act and the Council's refusal to accommodate my circumstances has made it impossible for me to get, or even apply for an HMO licence.

I was advised that the Housing Act s63(6) requires the Council to provide me with a means of application

And that their refusal to provide such was a "reasonable excuse" under s72(5) of the Housing Act 2004 for running an HMO without a licence - I have taken all reasonable steps to apply for one, but the Council's misconceived requirements make it impossible for me to obtain.

Evidently, I would prefer this mess did not exist and that I could apply for a licence. I have gone through the process twice already (one for a friend, and once for myself) and have had this house inspected twice. So I know how the process works (not so impossible) and know that the house would meet the requirements. I just don't know how to get from A to B due to the obstinacy of both sides

Can you please explain to me why the husband should be treated de facto as the owner and controller if he has not sought to be it.

I know that as a person who has an interest (potential interest) in the estate, that he must provide documents required in the notice (Housing Act 2004), but I cannot see any specific law / text of law that makes him responsible for his deceased wife's house until he chooses to be so.

Also, when you say the husband gets the first £250k - who defines what is the "first" £250k?`

Thanks

Expert:  Clare replied 2 years ago.
Hi
He is the person who has the right to apply for Letters of Administration - and in that role he is responsible for all the assets of the estate - including the house
he cannot be forced to apply for it - but he can be treated as if he has done so
Indeed arguably he has done so by allowing you to deal with the property.
That being the case he is also responsible for providing the information required by the council
Clare
Customer: replied 2 years ago.

He didn't allow me to look after the house. I took it upon myself for her and I knew from conversations with her before her death that, that is what she wanted me to do (I do it for others when required).

I accept that he is responsible for supplying the information to the Council. He possesses only 1 of the 4 documents which he (via me) has given to the Council already. Presumably he is not required to produce documents that don't exist.

How can he be treated as if he has applied for Letters of Administration (even though he has not) and how could he defend himself against that.

I am keen to persuade the windower to get on with it all - inheritance, accepting the role as owner in the HMO application etc - FROM NOW ON.

But I am also keen to avoid anyone being prosecuted for the mess in the past - much of it Council made.

How can he accept the role of being responsible for the estate from NOW on, without risking liability from the past.

As far s i can see it, my liability is contrained by the fact that I have done my best to apply for an HMO licence and the Council have refused (reasonable excuse), the house always passed inspections / standards (so was always safe...) and I have endeavoured to keep household numbers down below licencable limits (though visitors of tenants have occasionally bumped this number above - though I don't think such temporary visitors count...)

Let's not forget that we have done all the steps of substance - made sure the place is safe to live in as an HMO and been inspected and passed twice. I have provided a Disclosure Scotland certificate to show I have no criminal history and I have given all my information and the owners and been fully co-perative with them at all time. The only thing that remains is to fill out a form (impossible so far - albeit I have given them all the information asked for in the forms - though stated that the Deceased lady is the owner as that is what my understanding was (is?)), pay a fee and get the licence

How do we carefully get out of this mess - it seems that the family might be willing to finally get on with the inheritance and maybe even HMO licence application!

I just don't want to land either of us in jail for any of this mess.

Thanks

Expert:  Clare replied 2 years ago.
Hi
He is not being treated as if he HAD applied for Letters of Administration, he is being treated as the person who is entitled to do so
He cannot produce documents that do not exist - but he can still apply for the licence.
he has a good defence regarding any past breaches as he can simply say that he was not aware of the responsibility until they brought it to his attention
Your liability is because you actually did the lettering without the licence - and frankly there is no way around that - although I do not expect it to be a major problem for you
Clare
Customer: replied 2 years ago.

Thanks

Let me know how much time you spent on this and I'll bonus accordingly

I also think I posted 3 similar questions and will have to get the modulators to clear them up and re-assign the funds

Thanks very much - I suspect I will need little bits of help at some stages in the process... I hope you will be willing

Expert:  Clare replied 2 years ago.
Hi
I will do my best to help certainly!
Clare
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