Council Wins 3-2 in landmark Supreme Court Possession Appeal

01 Jan 2018


By a majority decision of the Supreme Court which potentially affects all joint council tenants, Solihull MBC , represented by Bryan McGuire QC and Catherine Rowlands of Cornerstone Barristers, has won an appeal brought by a council occupant, Miss Elaine Hickin.

A 3 bedroom council property in Leahill Croft, Chelmsley Wood, Solihull was let to Raymond and Sylvia Hickin in 1980. They were joint tenants. They separated and Mr Hickin moved away, but he remained a joint tenant. Mrs Hickin died in 2007, leaving her daughter Elaine in the property, where she had lived for many years. The issue in the case was this: who was entitled to succeed, daughter or husband? Solihull obtained a possession order on the basis that the husband was the tenant, but he had moved away and lost security of tenure so his tenancy could be terminated by service of a Notice to Quit.

Elaine claimed that section 89 of the Housing Act 1985 allowed her to succeed to her mother, arguing that the Act had its own exhaustive succession régime which abolished the common law rights and in fact the tenancy of surviving joint tenants and treated her as the lawful successor.

Her appeal failed. Solihull has established a “no vacancy” rule: whilst at least one joint tenant remains alive, there is no vacancy and there is no room for the operation of the succession provisions. The question of who succeeds to the joint tenancy does not arise as long as one of the joint tenants remains alive. The tenancy continues in existence – “the tenant” has not all died. Accordingly Mr Hickin remained the tenant, and there was nothing to which Elaine could succeed.

The result has potential impact whenever, as is very often the case, there is a joint tenancy. The result is good news for joint tenants, who are no longer at risk of losing their rights automatically on the death of one of them.

To view full Judgement click here.