Keeping a record of changes to tenancy agreements
In the recently reported case of London Borough of Waltham Forest v Mahmood Mr M was the son of the late Mrs M, who held a secure tenancy of a 3 bedroom flat with LBWF from 1982 until her death in September 2011. At some point in the months prior to her death, Mr M moved in with his family and upon the death of his mother he applied to succeed to the tenancy. LBWF refused his application on the grounds that he could not show 12 months continuous residence prior to his mother’s death. Notices to quit were served on the property and on the public trustee and possession proceedings began.
However, Mrs M’s 1982 agreement allowed for only a 6 month qualifying period for family members and Mr M argued that he was entitled to succeed to the tenancy by virtue of 6 months continuous residence. LBWF then tried to prove that it had served on Mrs M a notice under s103 Housing Act 1985, by which the terms of the tenancy had been varied to a 12 month qualifying period. LBWF could not produce any evidence of this, so they argued that the court could conclude on the balance of probabilities that a diligent exercise had been completed in a diligent manner and that the notice had been served on Mrs M.
The judge concluded that the only inference the court could reasonably draw was that the notice had not been served on Mrs M and, having found Mr M to have resided at the property from December 2010, the possession claim was dismissed.
Although this is a case involving a legal provision only available to local authorities, it demonstrates the importance to all social landlords of (1) checking what the actual tenancy agreement says, (not assuming what it will say) and (2) not assuming/hoping that a court will ‘forgive’ a social landlords inability to produce crucial documentation and (3) ensuring that documents are properly stored, catalogued and recorded.