Husband and wife claiming right to buy property – Council accepting right and making offer to sell property – Couple accepting offer and becoming joint secure tenants – Husband and wife separating – Wife giving notice terminating joint tenancy – Husband applying for relief under section 37 of the Matrimonial Causes Act 1973 – Whether notice terminating joint tenancy amounted to disposition of property – Application dismissed – Appeal dismissed
The appellant husband (H) and wife (W) occupied a property known as 29 Briset Road, Eltham, London, which was owned by the respondent council. H and W claimed the right to buy the property. The council made a discounteed offer to them, which they accepted. In December 1996 the couple became joint secure tenants of the property. The marriage subsequently ran into difficulties and divorce proceedings were commenced. On 6 March 1998 W gave the council notice terminating the joint tenancy with effect from 6 April 1998. On 28 April 1998 the council wrote to H stating that he was an unlawful occupant of the property. They began proceedings for possession in the county court on the basis that W had terminated the tenancy. On 3 September 1998 H made an application under section 37 of the Matrimonial Causes Act 1973 for the avoidance of a disposition of property. On 23 October 1998 the council served a notice on H denying that he had a right to buy the property since he was not a secure tenant.
A preliminary issue arose as to whether W, in terminating the joint tenancy of the matrimonial home and thereby bringing to an end H and W’s right to buy the property, had made a disposition of property within the meaning of section 37 of the Act that a judge, exercising the power contained in that section, could set aside. The judge held that W had not made a reviewable disposition of property within section 37(2)(b) because she had not made a “disposal of property” when she had served the council with the notice ending the joint tenancy and that, in any event, the right to buy was not “property” within its meaning in the section. H appealed.
Held: The appeal was dismissed.
1. The service of a notice ending the joint tenancy was not a “disposition of property”, and that was the only act performed by W on which H could rely. The nature of the notice could not simply change because it ended not merely the secure tenancy but also the right to buy, which depended upon the secure tenancy. The serving of the notice to end a period tenancy was not a dispositive act. The termination of the right to buy came about because of the effect to the statutory provisions creating the right to buy and not because of any disposition by the wife: Newlon Housing Trust v Alsulaimen [1999] 1 AC 313 considered.
2. Accordingly, it was not necessary to decide whether the right to buy was “property” within section 37(2) of the Act. If there was no secure tenancy, then there was no right to buy. A person who had been a secure tenant was only entitled to a discount in the price at which he could buy a property from a public sector landlord were he to become a secure tenant of such a landlord in future. On the other hand, if the tenancy existed and with it there was a right to buy, then a judge dealing with ancillary relief in matrimonial proceedings would be able to deal with the secure tenancy, enhanced by the right to buy, in an appropriate case.
Frances Zammit (instructed by Straker Holford & Co) apeared for the appellant; Ian Peacock (instructed by the solicitor to Greenwich London Borough Council) appeared for the second respondents; the first respondent did not appear and was not represented.
Thomas Elliott, barrister
