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Excluded Occupier


caravanj

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This isn't really a landlord / tenant problem but it has some commonalities so someone on the forum may know the answer.

My wife part-owns a house occupied by her mother & brother but as soon as her mother got the dosh from my wife to help buy the house, relations broke down.

There is a Deed of Trust that prevents her mother from creating any lien, charge or interest in the property which would include renting it or having lodgers & her brother is not named on the Deed of Trust.

The brother is an excluded occupier & doesn't pay rent since the Deed of Trust precludes this so when the time comes to sell the house what notice if any, do we have to give him to quit?

The only advice we've found is related to lodgers or people renting a room but this doesn't apply to her brother.

 

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Tricky one.

Does the mother still part own the house?

If not I would say you you need to formerlise the arrangement and get a tenancy agreement in place as that will make it so much easier to get possession when needed.

Otherwise they could ague "we were promised a tenancy for life" and you could end up with (a very large legal bill) a protected tenancy that could then be passed down to the brother when the mother dies.

You need to get professional advice now from a specialised housing solicitor to lay the ground work.

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Thanks for your reply,

The house is owned 75% by her mother & 25% by my wife.

The Deed of Trust specifically precludes her mother from creating any lien, charge or interest in the property & we've always thought that would include her mother offering a tenancy to her son since that would give him an interest in the property.

The Deed of Trust states that my wife is entitled to be paid her 25% of the value of the house when either both her parents are deceased or can no longer live in the house i.e they're in residential care etc.& realistically that could only be achieved by selling the house.

The notice to quit for an excluded occupier renting a room seems to be whatever the rental payment period is but in our case the son doesn't rent a room so there's no payment period & therefore it could be argued that there's no notice period. 

We'll most likely take your advice & consult a solicitor.

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Ok thats clearer.

My first thought is to be aware that if the mother dies or goes into a care home and the brother remains in the property his status as excluded occupier could change to a tenancy and it could become more problematic to get him get. He would only need to say that he did pay rent (whether he did or not) and you could need a court hearing to decide if it was true or not. Maybe it would be good to get some documentation on file and posted to the brother confirming that he doesnt have a tenancy and doesnt pay any rent. But check with your solicitor first.

If you end up with a tenant on a protected tenancy you will end up with a property that is seriously devalued. A couple of hundred quid spend on specialised legal advice now could save you a lot of grief at a later date. 

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Yes we'll take legal advice.

It is quite infuriating to find that having spent £hundreds on what we thought was a watertight Deed of Trust there could be the possibility of her brother just ignoring it & becoming a tenant & overturning the Deed of Trust.

To say that the UK law regarding the occupancy of residential property is a joke is unfair to jokes!

Thanks again for your input.

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Surely the lesson to be learned is to always ask your legal representative a few questions.

* Is what I am planning legal ?

* Does it meet my requirements ?

* Is it cost effective ?

* Can anything go wrong that will reverse my requirements ?

* Etc, etc

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18 hours ago, Richlist said:

Surely the lesson to be learned is to always ask your legal representative a few questions.

* Is what I am planning legal ?

* Does it meet my requirements ?

* Is it cost effective ?

* Can anything go wrong that will reverse my requirements ?

* Etc, etc

The Deed of Trust is very specific & covers everything that was required & it wasn't until Grampa's advice that we realised there could be the potential for a future problem which is why we're taking additional legal advice but as the solicitor has pointed out it's impossible to pre-empt every single possible scenario.

 

 

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I'm not suggesting that you or your solicitor could pre-empt every possible scenario.....although I doubt the list is exhaustive. However being unable to identify every possible future problem doesn't mean you should do nothing.

It seems to me that asking the solicitor the very simple question 'can anything go wrong that will reverse this Deed of Trust ?' is far preferable to not asking anything and relying on information being provided voluntarily. At the very least it may reduce the risk of a nasty surprise.

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9 hours ago, caravanj said:

The Deed of Trust is very specific & covers everything that was required & it wasn't until Grampa's advice that we realised there could be the potential for a future problem which is why we're taking additional legal advice but as the solicitor has pointed out it's impossible to pre-empt every single possible scenario.

Let us know how you get on. I'm curious on what their take is on the situation and the potential pit falls previously mentioned. If they are valid and I see no reason why they wouldnt be, if it was me I wouldn't be very happy with the original solicitor for not raising the issue and putting in place a means/documentation to counter the obvious future  risk/scenario.  

But having for years correcting high st solicitors basic housing law mistakes I'm not overly surprised. 

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On 31/08/2017 at 10:32 AM, Richlist said:

I'm not suggesting that you or your solicitor could pre-empt every possible scenario.....although I doubt the list is exhaustive. However being unable to identify every possible future problem doesn't mean you should do nothing.

It seems to me that asking the solicitor the very simple question 'can anything go wrong that will reverse this Deed of Trust ?' is far preferable to not asking anything and relying on information being provided voluntarily. At the very least it may reduce the risk of a nasty surprise.

16 hours ago, Grampa said:

Let us know how you get on. I'm curious on what their take is on the situation and the potential pit falls previously mentioned. If they are valid and I see no reason why they wouldnt be, if it was me I wouldn't be very happy with the original solicitor for not raising the issue and putting in place a means/documentation to counter the obvious future  risk/scenario.  

But having for years correcting high st solicitors basic housing law mistakes I'm not overly surprised. 

@Richlist

We're asking the solicitor what happens if the terms of the Deed of Trust are broken insomuch as my wife's mother grants her son a tenancy which would be against the 'not to create or purport to create any charge mortgage lien or other interest in respect of the property' clause.

My personal view is that any such tenancy would be invalid & therefore the son's status would remain as an excluded occupier .

@Grampa

Yes we'll post the advice that we receive & details of any extra measures that we've had to take.

We've instructed a solicitor who specialises solely in property & property occupancy law.

Our original question about the length of notice, if any, to get the son out of the property when the terms of the Deed of Trust trigger a sale will also be put to the solicitor.

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