Is this really basis for an Estoppel Claim?

[ANewDawnTonight]

I am hoping someone will take the time to answer, as I feel the need for a 2nd, 3rd and 4th opinion!

 

I will give as many details in as brief a format as I can..

 

I have inherited a property from my father who died intestate.

 

 

Letters of Admin were completed with Solictor and the 6 month claim period is also over.

 

This property is currently occupied by my fathers nephew who despite my giving him 1 months notice,

has not vacated and is now refusing to leave.

 

 

He recently sought Solicitors advice and they informed mine that the nephew will continue to reside in the property

according to his uncles (my fathers) wishes as my father had indicated to him that he would be entitled to live in the property for the rest of his life.

 

 

To add to this, on several occasions my father had verbally told him that the property would be left to him (apparently).

 

My Solictor referred me to her Litigant Colleague who seemed to think that the only procedure to take would be to issue a court order for eviction,

which would be defended by the nephew on the basis of the information above.

 

 

The word Estoppel was mentioned briefly, so I am assuming this would be the claim the nephew would be going for?

 

My Solicitor told me that his chances of success are likely, and my best option would be Mediation.

 

I have a hard time believing this and have done as much research as I possibly can on Estoppel cases

but the outcomes do seem to be widely varied.

 

I would really appreciate some more opinions on this as I am being warned that

I could be faced with £20,000 + court fees with not much chance of winning.

 

I do not know the nephew at all,

only met him a handful of times so can only tell his background as I have been led to believe by him.

 

My father purchased the property,

the nephew moved in with him and contributed money each month towards payment of bills.

I do not understand why my Solicitor would think that this would be a good basis for a claim.

 

Can anyone advise?

 

Thanks in advance.

[AndyOrch]

Hi ANewDawnTonight and welcome to CAG

 

As you state your father died intestate then only a spouse or civil partner or child inherits.

 

If there is no surviving spouse or civil partner, or the deceased was single In this case the estate is handed out in the following order of priority:

 

1. Children – The children of the deceased share the estate equally. If one of those children has died before the deceased, their share is

passed down to their children.

 

2. Parents – If there are no children the deceased’s parents inherit equally. If one parent has died, the surviving parent inherits the

deceased parent’s share. Step parents are not eligible to inherit.

 

3. Brothers and sisters – If there are no parents living, the brothers and sisters of the whole blood of the deceased inherit equally. If one

sibling has died before the deceased, their share is passed down to their children..

 

As far as Im aware Nephews have no legal rights or claims on the estate nor to any promissory estoppel within the the rules laid down by The Administration of Estates Act 1925.

 

Regards

 

Andy

[BazzaS]

Hi ANewDawnTonight and welcome to CAG

 

As you state your father died intestate then only a spouse or civil partner or child inherits.

 

If there is no surviving spouse or civil partner, or the deceased was single In this case the estate is handed out in the following order of priority:

 

1. Children – The children of the deceased share the estate equally. If one of those children has died before the deceased, their share is

passed down to their children.

 

2. Parents – If there are no children the deceased’s parents inherit equally. If one parent has died, the surviving parent inherits the

deceased parent’s share. Step parents are not eligible to inherit.

 

3. Brothers and sisters – If there are no parents living, the brothers and sisters of the whole blood of the deceased inherit equally. If one

sibling has died before the deceased, their share is passed down to their children..

 

As far as Im aware Nephews have no legal rights or claims on the estate nor to any promissory estoppel within the the rules laid down by The Administration of Estates Act 1925.

 

Regards

 

Andy

 

This would be proprietary estoppel, rather than promissory estoppel.

 

Proprietary estoppel doesn't rely on a close kinship tie like the intestacy rules : a non-relative can rely / benefit from proprietary estoppel.

 

In effect there are a number of components:

 

That a promissor gave an overt or inferred promise (overt : "if you move in and care for me while I'm ill, you'll always be able to stay here") ( inferred : "stay & work the farm for me, I'll see you alright")

 

That the promissee relied (reasonably) on that promise, and

 

That the promissee changed their position, acting to their detriment.

 

The last two of these comprising "detrimental reliance" on the initial promise.

 

It could come down (especially where there is nothing in writing!) to a court weighing the evidence as to what was said / intended.

[steampowered]

If the nephew can prove that he was promised the property and paid bills in reliance on that promise, he would have a decent proprietary estoppel claim.

 

However that would be difficult to prove. It is essentially based on a verbal assurance that took place some time ago with no written evidence. I also think that contribution towards bills (which presumably the nephew would have had to pay anyway) is a less obvious example of reliance than in most of the cases (which cover things like e.g. people spending money to get planning permission or people working on a farm towards 20 years). It doesn't sound to me like this would be a strong claim, although it is at least arguable and I am sure we have less information than your solicitor.

 

The remedy for proprietary esotppel should be proportionate to the detriment suffered, and not necessarily the whole house. I appreciate you might not have this information now, but at some stage you'd need to try and get a sense of how much money had been contributed towards bills.

[AndyOrch]

Information and case law :-

 

Proprietary Estoppel Claims Against a Deceased’s Estate

 

http://www.stjohnschambers.co.uk/wp-content/uploads/2012/07/Proprietary-Estoppel-and-Constructive-Trust-Claims.pdf

 

Regards

 

Andy

[ANewDawnTonight]

Thank you so much for your responses so far..

 

I am aware that the Nephew contributed about £450 towards bills each month as he actually told me this when I met him. However, my Father was a cash in hand person and all the bills were in his name and there is no record of the Nephew paying anything at all. I am unsure if this would work in my favour or not?

 

I know they have lived together in 2 other properties before this one, however they were rentals (I am not sure of the money situation in those properties or even if it would be taken into account by the court as it wasn't THIS property?)

My Father purchased this property in 2011 and the nephew moved in almost straight away. I don't believe my Father was ill as such. He died suddenly. Although he was aware it could happen at any point, I don't believe the condition actually had any effect on his daily living so to speak, so i do not see how the Nephew could claim caring for him considering my Father had how own car to use, and he had only been retired for 1 year prior to his death.

It's hard for me to get all the details as we only had a text and letter relationship and hadn't seen eachother for many years, so I can only go on what I was told by the Nephew last year.

[AndyOrch]

I would think that the nephew would need deep pockets to mount such a claim on the property and as you have stated mediation may be an option given that he has evidence/history of residing in 2 properties with your father.Would it be your intention to sell the property once resolved and if so perhaps make him a financial offer of settlement ?

 

Regards

 

Andy

[ANewDawnTonight]

I did intend to sell it yes, as it's not somewhere I would want to live. Unfortunately though I had planned on using it as poss temp accomodation until it was sold so I did not have to pay rent on my flat anymore. I handed in my notice and now this has all come up so I am in a bit of a predicament as I will be due to get out in 4 weeks.

My Solicitor said it all depends on who has the biggest "balls" and is willing to fight, lol. I would if I knew I had a chance of success but he didn't leave me feeling this way which is why i've sought advice here.

 

I posted this question on another forum like this one and have had a similar answer from someone else.. But you know when you just want someone to tell you what you want to hear, and when they don't, you need to come to terms with the facts and accept the situation? - This is where I am at.

I haven't had an easy life, mental illness, benefits, lost job, bankrupt, the usual. My Father knew this and I am certain this is why he did not make a will, as he knew it would all go to me, being his only child. He wouldn't have to have had to upset the family writing it in the will, as the law would say I was entitled to everything. I feel this was his way of giving me the start in life I never had because he wasn't around to help when I was younger, and now someone wants to take some of it away.

 

I know Mediation would be the best option but my anger inside would rather give twice the amount to a lawyer that will win my case than for the nephew to walk away with anything - I hope someone can understand.

I have been so fair, I let the Nephew stay in the house while all this was happeneing, and said as long as he took care of his own bills, I wouldn't charge him a penny. He never once mentioned to me that he would be claiming the house in the last year and I have text messages from him to prove that he was aware it was going to me, and even a query as to whether he could purchase the property from me.

But if none of this can stand up in court, or even dismiss his claim completely, I cannot understand what justice there is in the legal system.

Sorry - I need to vent my frustration to someone.

I feel he's got me right where he wants me and he knows it.

[AndyOrch]

"My Solictor referred me to her Litigant Colleague who seemed to think that the only procedure to take would be to issue a court order for eviction,

which would be defended by the nephew on the basis of the information above."

 

But he does not hold a Tenancy agreement and is therefore a trespasser.

[ANewDawnTonight]

That's exactly what I said to him! I thought he was an Excluded Occupier and thought I had the right to lock him out when he was out of the house, but both my Solicitors (original, and litigator) advised against this saying that that he would instantly get an injuntion against me which I would have to pay for and be let in the property anyway. They then said that the judge may dislike me because of doing that, and if the judge disliked me he would find a way to find in favour of the Nephew regarding the Estoppel Claim. You can imagnie, that frightened me off, a little! So I haven't taken any further action yet.

[steampowered]

I feel he's got me right where he wants me and he knows it.

I don't agree with this. Your posts indicate that he has no real evidence to support the claims he is making. That doesn't sound like a particularly strong claim to me.

 

 

If you want to evict someone there is a very clear legal process that can be followed. People's homes are important so it is understandable that there is legal protection. You should not try to take short-cuts on this. If you try to avoid seeking a repossession order from the court trying to use an ill advised self-help solution, you are only storing up greater problems for yourself, and potentially committing the criminal offence of unlawful eviction for which you can be prosecuted by the council.

 

I thought he was an Excluded Occupier and thought I had the right to lock him out when he was out of the house

He is not an Excluded Occupier. This basically refers to people who live with their landlord, at the time the tenancy was granted and also when it comes to an end. Even if he was an Excluded Occupier you'd still have to give him notice, not just change the locks.

 

This is not really my area, but it sounds to me like you should do this properly - which probably means going to court to get a repossession order. You have to remember that you are evicting someone from the place they have been living for many years - 1 month is not a long period of time to find somewhere else, particularly if that person is not easily able to afford moving elsewhere.

[ANewDawnTonight]

Steampowered, on the GOV website I read this paragraph

If you stop living in your home, the tenants can still stay there, but their tenancy type may change to reflect that you no longer live there.

 

If you sell your home and the new owner plans to live in the property as a resident landlord, they must:

 

give notice to a tenant within 28 days that they intend to live there

move in within 6 months of the sale

Until the new owner moves in, tenants will have more protection through tenancy laws, because during this time there’s no resident landlord. Their rights will depend on when they moved in. Find out about tenants’ rights in ‘Private renting: tenancy agreements’.

 

If you die, a tenancy will usually continue as though you were still resident, until someone else takes ownership.

 

It's this last paragraph that made me assume he would be classed as an Excluded Occupant which means that you actually require no notice at all and are free to change the locks when they are out.

However, I do feel deep down I should take the safer route and consider a legal eviction anyway. He has actually been in the property almost 1 year since my Father died. At no time did I say he could permanently stay, I just said he didn't have to leave while all the admin period was going on. That ended in July and he had notice to quit then (1 month) so I would think really he's had plenty of time to get something sorted.

I know his family lives round the corner (literally) and have plenty of space to accommodate him should he wish.

 

The only thing I found tempting about changing the locks whilst out is because I orginally though this meant, he would have to take me to court, rather than me take him. But my Solictior said he could get an injunction to get back in the property, which put me off the idea if they are correct.