Sheffield council houses - what happens after death?

[honeyb35 10]

Sorry, bit of a grim and depressing post, but bear with me!

I'm currently in the process of creating a will and a care package type thing for my children.

Both myself and my husband are in our 30's so I'm hoping we don't cark it for quite some time yet, but after losing my brother in law late last year, I'm aware that anything can happen.

We have 3 children together, one who is severely physically and mentally disabled. We have a council house which has been adapted for his benefit. As such, if anything happens to both of us, the people I name as carers will ideally move into this property to live with the children.

Is this acceptable practice with Sheffield council? The people I am naming live in an upper floor flat with no lift access, which is obviously unsuitable for my son, as well as it being too small for all 3 children anyway.

Any help and advice would be welcomed thank you.

[Plain Talker 11]

*Mod hat off, advice hat on*

 

There are rules about who can "inherit" (succeed to) a tenancy.

 

Under council rules, the tenancy can only be "inherited" once, (usually from Spouse to spouse, or from a parent to a surviving {adult} child).

 

I would think the best idea would be to discuss this issue with housing officers, as you can make an assumption that the housing dept would use common sense, and say "this is an adapted property, of course the surviving disabled child should succeed to the tenancy", but, unfortunately, common sense does not always prevail.

 

I would ask for the housing to make a provisional ruling, that, should you or your husband pass away prematurely, (God forbid!) to allow your son to remain at the property for as long as he is in need, if they are able to do so, seeing as the property has been specifically adapted for his needs.

[leviathan13 350]

All I can advise is to send this in to SCC, probably in writing, to get a formal response.

 

If someone is wanting a non-standard let, for whatever reason, each case is investigated on it's merit - I can't see there being a generic response to something like this as there are too many factors: children's ages, demand for the property/area etc.

 

You'll be better getting the info from source as opposed to speculation on here.

[honeyb35 10]

Thanks both. I don't want to have in writing what I want to happen, if its something that 'can't' happen if that makes sense? If something was to happen to us, I can't think of anyone I know who could care for the disabled child in terms of suitable housing.

Its something I've worried about but even more so with the 'bedroom tax', as once my daughters have grown up and left home then I'm in a 3 /4 bed house with my disabled child. Obviously I may not be here that long - I may win the lottery and buy a bungalow

[Jeffrey Shaw 90]

I'm currently in the process of creating a will and a care package type thing for my children.

Both myself and my husband are in our 30's so I'm hoping we don't cark it for quite some time yet, but after losing my brother in law late last year, I'm aware that anything can happen.

We have 3 children together, one who is severely physically and mentally disabled. We have a council house which has been adapted for his benefit. As such, if anything happens to both of us, the people I name as carers will ideally move into this property to live with the children.

Is this acceptable practice with Sheffield council? The people I am naming live in an upper floor flat with no lift access, which is obviously unsuitable for my son, as well as it being too small for all 3 children anyway.

As others have posted, there are limits on the passing-down of a secure tenancy. The Housing Act 1985 as amended is the main statutory authority (BUT not every letting by a local authority falls within it- so verify whether yours does).

 

Part IV of the Act [= sections 79-117] is relevant. See http://www.legislation.gov.uk/ukpga/1985/68/part/IV

 

Security of tenure is under s.82; and 'succession' is under s.89. The latter reads:

 

(1) This section applies where a secure tenant dies and the tenancy is a periodic tenancy.

 

(2) Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules:

(a) the tenant’s spouse or civil partner is to be preferred to another member of the tenant’s family;

(b) of two or more other members of the tenant’s family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord.

(3) Where there is no person qualified to succeed the tenant, the tenancy ceases to be a secure tenancy:

(a) when it is vested or otherwise disposed of in the course of the administration of the tenant’s estate, unless the vesting or other disposal is in pursuance of an order made under:

(i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders made in connection with matrimonial proceedings),

(ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.),...

(iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents), or

(iv) Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.)

(b) when it is known that when the tenancy is so vested or disposed of it will not be in pursuance of such an order.

 

(4) A tenancy which ceases to be a secure tenancy by virtue of this section cannot subsequently become a secure tenancy.

 

And see s.87 re who is 'qualified to succeed' and s.88 re cases in which T is himself a 'successor'.

[Metroidx 10]

As already stated this is difficult to answer as it depends on a number of factors however, in general what would happen is that should a tenant pass away (regardless of whether they are a sole or joint tenant) a succession takes place and the tenancy will usually pass to their spouse or partner. So in your case, should you or your husband pass away it would transfer to the other. It is worth noting at this point that only one succession can take place per tenancy.

 

In the rare event that both you and your husband passed away at the same time, a succession would still take place and one of your children would be entitled to succeed. The act mentioned above does not state that the successor needs to be over 18 and so children can and do succeed to tenancies. It is at this point that the Council would look into the best way to facilitate this which could include your elected carers taking the tenancy in trust until your eldest child reaches 18.

 

Either way, as you mention the property is adapted for your sons needs, it is unlikely the council would elect to rehouse them as this would incur a further cost to adapt a new property (unless there was severe underoccupation). It would be worth speaking with a housing officer however it is unlikely they could give you a difinitive answer.

[Jeffrey Shaw 90]

The act mentioned above does not state that the successor needs to be over 18 and so children can and do succeed to tenancies. It is at this point that the Council would look into the best way to facilitate this which could include your elected carers taking the tenancy in trust until your eldest child reaches 18.

You're right, the 1985 Act does not debar a minor from being a 'successor'.

BUT a minor cannot hold any legal estate or tenancy. Here's s.1(6) of the Law of Property Act 1925:

 

A legal estate is not capable of subsisting or of being created in an undivided share in land or of being held by an infant.

 

For the perils of attempting the impossible, see what happened to Hammersmith & Fulham LBC in a similar case:

http://www.bailii.org/ew/cases/EWCA/Civ/2009/259.html

[Metroidx 10]

You're right, the 1985 Act does not debar a minor from being a 'successor'.

BUT a minor cannot hold any legal estate or tenancy. Here's s.1(6) of the Law of Property Act 1925:

 

A legal estate is not capable of subsisting or of being created in an undivided share in land or of being held by an infant.

 

For the perils of attempting the impossible, see what happened to Hammersmith & Fulham LBC in a similar case:

http://www.bailii.org/ew/cases/EWCA/Civ/2009/259.html

 

Hence why i mentioned the council would look to find a way of facilitating the succession such as placing the tenancy in trust. Thanks for the case law though, makes an interesting read.

[Jeffrey Shaw 90]

Hence why i mentioned the council would look to find a way of facilitating the succession such as placing the tenancy in trust.

H&F did just that, by operation of law- and came a cropper.

[Metroidx 10]

H&F did just that, by operation of law- and came a cropper.

 

Correct me if im wrong (which i may well be!) but does the case in point not relate to the fact that H&F implied the granting of a legal tenancy to a minor due to the agreement being the standard one they employ which made no reference to the fact that it was to be held in trust?

[Jeffrey Shaw 90]

Yes. However, an attempt to vest a legal estate in a minor produces what's called a Resulting/Constructive Trust. This is automatic and needs no express wording to create it. H&F themselves became the trustees, holding on trust for the minor (albeit inadvertently). Their fiduciary duty to her as trustees barred them from exercising landlord powers.

[Metroidx 10]

Who could then apply then apply to county court to absolve themselves of the responsibility and have a new trustee appointed could they not?