Council house — Right to buy — Death of tenant before property conveyed — County court refusing order for possession of property occupied by tenant’s personal representatives — Declaration that right to buy was equitable interest enforceable by personal representatives — Appeal by council — Court of Appeal holding that tenant should remain secure tenant until property conveyed — Appeal allowed
E was a secure tenant of a council house at 32 Hillcrest Road, Bradford. Her daughter M lived at no 72, another council house in the same street. When E became ill her daughter, M, and her family moved into no 32 to live with her in August 1990. At the same time M assigned her interest in the secure tenancy of no 72 to her sister B.
On July 17 1990 E had given notice claiming the right to buy no 32 under the Housing Act 1985. On August 17 the council admitted E’s right to buy and on October 25 they sent her a letter offering to sell at the price of £10,712, which gave the maximum discount available under the Act which applied in E’s case because she had lived in the house since 1951. On November 2 she wrote to the council saying that she wished to purchase on the terms of the council’s letter. There was no transfer of the property when E died on December 25. M continued to pay the rent but when the council discovered that E had died they issued an application for possession of no 32. The county court dismissed the council’s claim for possession and made a declaration on M’s counterclaim that the right to buy was an equitable interest vested in and enforceable by M as representative of E’s estate. The council appealed.
Held The appeal was allowed.
1. Under the Housing Act 1985, section 121, a secure tenant claimed to exercise the right to buy by written notice to that effect. The landlord, within a period which was either four or eight weeks, had to state whether it accepted the right or denied it (section 124). Where the right to buy had been established, the landlord, within a period which was either eight or 12 weeks, had to state the price at which the house ought to be sold and the terms to be included in the conveyance or grant (section 125). The terms were then agreed by the tenant or any issue between them was determined.
2. By section 138(1) where a secure tenant had claimed to exercise a right to buy and that right had been established, then, as soon as all matters relating to the grant had been agreed or determined, if the dwelling-house was a house and the landlord owned the freehold, the landlord had to make to the tenant a grant of the dwelling-house in fee simple absolute.
3. The 1985 Act contained the implicit requirement that the tenant had to remain a secure tenant until the conveyance or grant of the property. Where a tenant died after the right to buy had been established and a price agreed between the parties but no conveyance had taken place, the right to buy disappeared and did not pass under the tenant’s estate.
Nicholas Stewart QC and Toby Kempster (instructed by the solicitor to Bradford Metropolitan District Council) appeared for the appellants; Terence Etherton QC and Brian Walker (instructed by Harrison Tankard & Mossmans, of Bradford) appeared for the defendants.
