My client is being offered a life tenancy of a rented flat at well below market rent. My client will have a lease that confirms the life tenancy. Under the law, a life tenancy is for 90 years. I seem to remember that leases over 21 years do not qualify for housing benefit. My client will be paying rent in the usual way with annual increases, but could housing benefit refuse to pay because of the 90 year lease, even though my client is paying rent? My client is an older person, so is more likely to occupy the property for 20 years or so, rather than 90 years. Any advice would be appreciated

At first glance, a 90 year lease would mean that your client would not be entitled to HB due to the "long tenancy" bar.

However, much will depend on whether the agreement conforms to the Land & Property Act. Your best bet is to take a close look at CH/0883/2006. This is the most comprehensive and recent CD on "long tenancy" cases for HB.

See: www.osscsc.gov.uk

Regards

Any rule of law that “requires a seal for the valid execution of an instrument as a deed by an individual” was abolished by section 1(1) of the Law of Property Act (Miscellaneous Provisions) Act 1989.

However the lease must be made by deed (section 52 Of the Law of Property Act 1925) which must be in a form which fits the requirements of section 1(2) of the 1989 Act and must be registered under the provisions of the Land Registration Act 2002.

It is not until the registration requirements are met that the tenancy begins to operate at law.

Thank you both for your very helpful replies. I am wondering if there is any other form of tenancy that my client could ask for which would give him the same security as a life tenancy - but would be for a shorter period, within the HB Regs. He is not being offered a tenancy with succession rights, so an assured tenancy is excluded. He does not have a tenancy at present.

"I am wondering if there is any other form of tenancy that my client could ask for which would give him the same security as a life tenancy - but would be for a shorter period, within the HB Regs."

There is a potential difficulty here, in relation to HB. If the agreement/liability is manipulated for the purpose of falling within potential HB entitlement, it is conceivable that the LA *may* view the liability as being created to take advantage of the HB scheme (i.e. "contrived"). If the LA arrived at that conclusion, then no HB would be payable, irrespective of the long tenancy issue <HBR 9(1)(l)>.

Just something to bear in mind.

Thats a possibility but it would be harsh. Case law shows that a contrivance is an abuse of the scheme, not just availing oneself of it. As long as a genuine tenancy is created with genuine liability and that she wouldn't otherwise,say have been able to live there rent free then she should be ok, but as Kevin says, it is a risk. Depends a bit on your local authority.

Just had another thought. What about a fixed period assured tenancyfor say 20 years with a contractual provision as to renewal, i.e. that a further fixed term tenancy can be requested and must not be unreasonably refused by the landlord. Probably a slightly less degree of security in some respects but would offer greater security than say an indefinate (periodic) tenancy

One more point is that to be treated as liable to pay rent your agreement to pay must be on a commercial basis.

I'm not judging this case as I don't know the details but if I worked for H.B I'd be inclined to wonder why it's well below a market rent and why would the landlord give such a long tenancy.

Sorry to be unhelpful

Income support, IB-JSA and PC are other options as they can meet the cost of rent and ground rent for a 'long-tenancy' - one exceeding 21 years.

Nicola, you say "he is not being offered a tenancy with succession rights, so an assured tenancy is excluded".

Section 17 (Housing Act 1988) succession rights only seem to apply to periodic tenancies, so the fixed term tenancy would seem an appropriate option for both parties.