Secure tenant living with family in council property — Sole or principal residence — Spouse becoming secure tenant on death of husband — Mother requiring daughter to share in right to buy — Daughter becoming joint tenant with mother — Whether daughter entitled to proceed with right to buy on mother’s death — High Court ruling in favour of daughter — Mother and daughter to be treated as secure joint tenants — Court of Appeal upholding High Court’s decision
On December 24 1973, T’s father was granted the tenancy of 9 Hutton Gardens, Harrow Weald, Middlesex. He lived there with his wife and T. It was their only home. When T’s father died in 1976, her mother succeeded to the tenancy by virtue of section 87 of the Housing Act 1985. In 1988, in accordance with section 122(1) of the Act, her mother served written notice on the council claiming to exercise her right to buy the property as a secure tenant. Under section 123(1), a secure tenant might in a notice under section 122 require that not more than three members of his family, who were not joint tenants but occupying the dwelling-house as their only or principal house, should share the right to buy with him. In accordance with that provision, the mother required that T should share in the right to buy.
The notice was received by the council on September 7 1988. On October 12, pursuant to section 124(1), the council gave written notice admitting the right to buy. Under section 138(1), where a statutory tenant had claimed to exercise the right to buy and that right had been established, then, as soon as all matters relating to the grant had been agreed or determined, the landlord should convey the interest in the property to the tenant. By June 6 1989 all matters relating to the grant had been agreed or determined within section 138(1). After applying the maximum statutory discount of 50%, the price was fixed at £41,200, leaving outstanding a mortgage of approximately £27,000. The right was exercised to defer completion until September 7 1991 — three years from the date when notice claiming the right to buy had been given.
On November 7 1990, when the three-year period still had 10 months to run, the mother died intestate. It was common ground that T was not a secure tenant in her own right and the council took the view that, as her mother had died before completion, T had no right to go ahead with the purchase. The holding deposit was paid to T and she was served with a notice to quit. T’s solicitors subsequently wrote to the council on her behalf stating that she wished to complete the purchase. Two days later they sent an engrossed conveyance to the council which replied that T had no right to buy under the 1985 Act and that since she had been served with notice to quit, she was in unauthorised occupation. T commenced proceedings for an injunction requiring the council to complete the purchase. On July 4 1991, the council served a counterclaim for possession of the property. The county court found in favour of T and ordered the council to convey the property to her pursuant to the right to buy provisions. The council appealed.
Held The appeal was dismissed.
1. Under section 123(3), where by notice any members of a tenant’s family were validly required to share the right to buy with the tenant, the right to buy belonged to the tenant and those members jointly, and he and they should be treated as joint tenants.
2. In the present case section 123(3) came into operation and T and her mother were deemed to be joint tenants. Moreover, as the mother was a secure tenant, they were deemed to be secure joint tenants. It was difficult to see how someone could be a joint tenant with a secure tenant without herself becoming a secure tenant.
3. They were secure joint tenants for the purpose of the right to buy provisions: these included section 138(1).
4. The effect of section 123(3) was that if the mother and T in reality were joint secure tenants, then T was the sole secure tenant on November 7 1990 when her mother died. On that footing the council’s duty to convey the property was enforceable by injunction on receipt by the council of the letter from T’s solicitors indicating that she wished to complete the purchase.
5. In the court’s view, the words of Lord Asquith in East End Dwellings Co Ltd v Finsbury Borough Council [1952] AC 109 at p 132 were applicable: “If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it … The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it came to the inevitable corallaries of that state of affairs.”
Roger McCarthy (instructed by the solicitor to Harrow London Borough Council) appeared for the appellant council; Edward Denehan (instructed by David Gouldman & Co) appeared for the respondent T.
