Succession to a secure tenancy of a house under Pt 5 Housing Act 1985
Solihull Metropolitan Borough Council v Hickin  EWCA Civ 868
Solihull Metropolitan Borough Council recovered possession of a valuable three bedroomed property which had been claimed by the daughter of the former joint tenants. Her parents had split up and her father moved out of the property, but failed to tell the local authority so remained the joint tenant but did not live at the property. On the death of the Defendant’s mother, the Council argued that the father was the sole tenant by right of survivorship. As he was not residing at the property, he was not a secure tenant so his tenancy could be terminated by service of a Notice to Quit.
The Defendant defended the subsequent possession proceedings by claiming that she was entitled to succeed to her late mother’s tenancy, and that the statutory rules on succession overrode the common law rule of survivorship.
At first instance, the Council were granted a possession order, but this was overturned by the Circuit Judge on the Defendant’s appeal. The Court of Appeal has now granted the Council’s appeal and restored the possession order.
The Council argued that nothing in the statutory provisions on survivorship overruled the common law characteristics of a secure tenancy. Indeed, earlier case law, particularly Birmingham City Council v Walker  UKHL 22, had ruled that the common law was maintained by the statute and “a secure tenancy can in principle pass in any way permissible at common law” [per Lord Hoffman at paragraph 5].
The Defendant argued that the words of section 85 were very clear:
- This section applies where a secure tenant dies and the tenancy is a periodic tenancy.
- Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, …
She argued that a secure tenant had died, and she was qualified to succeed, so the plain words of the statute were fulfilled. Accordingly, the tenancy was vested in the Defendant under s.89(2) ‘by virtue of this section’, depriving her father, the former secure tenant, of his interest in the tenancy.
The Master of the Rolls found that although this did seem to follow from those two terms of s.89 alone, and would produce a satisfactory result in the facts of this case, one had to consider the wider statutory context and whether the construction contended for resulted in a sensible outcome when considered more widely. He noted that where one of two joint tenants was not entitled to succeed (for example if they were not family members),
“the interpretation put forward by [the Defendant] … could produce a quite extraordinary result in other circumstances. Consider a case where two women, each of whom has a child, are granted a joint tenancy of a property in which both of them live together with their respective children. On the death of one of the women, Mr Nicol’s argument, as he accepts, would result in the tenancy vesting in her child, and the surviving secure tenant being divested of her interest under the tenancy, and without any right to stay in her home, in which, until the death of her co-tenant, she was a secure tenant. This seems to me to be a rather absurd, or at least capricious, result, amounting almost to a sort of reverse tontine, which is most unlikely to have been intended by the legislature”. [para 12]
Further, “the tenant” in the section, where there is a joint tenancy, is to be read as meaning ‘the joint tenants or any one or more of them’: Lloyd v Sadler  774.
Catherine Rowlands represented Solihull Metropolitan Borough Council.
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