Landlord and tenant — Secure tenancy — Whether person who has lived with deceased tenant for more than 12 months entitled to succession tenancy where residence in demised dwelling-house less than 12 months
Thomas held a secure tenancy under the Housing Act 1985 of a dwelling-house at
29 Juniper Court, Morris Road, London E15, owned by the respondents, Waltham
Forest London Borough Council — His brother, the appellant Gary Thomas, lived
with him for two and a half years — On April 11 1988 the two brothers moved to
336 Stocksfield Road, Walthamstow, London E17, of which Webster Thomas was
granted a secure tenancy — On April 21 1988 Webster Thomas died — The
respondents sought possession of the property — The appellant, who claimed a
succession tenancy under section 87 of the 1985 Act, appealed the decision of
the Court of Appeal, which decided that he could not succeed to a secure
tenancy because, although he had resided with his brother for more than 12
months, he had not resided in the property for the qualifying 12 months
stipulate that the successor to the deceased secure tenant must have resided at
a particular house for 12
period — The effect of the section is to ensure that a qualified member of the
tenant’s family, who has made his home with the tenant, shall not lose his home
when the tenant dies but shall succeed to that home and to the secure tenancy
which protected both the tenant and the successor
The following
cases are referred to in this report.
Collier v Stoneman [1957] 1 WLR 1108; [1957] 3 All ER 20, CA
Edmunds v Jones (Note) [1957] 1 WLR 1118, CA
South
Northamptonshire District Council v Power
[1987] 1 WLR 1433; [1987] 3 All ER 831, CA
‘Wonderland’,
Cleethorpes, Re [1965] AC 58; [1963] 2 WLR 1426; [1963] 2 All ER 775, HL
This was an
appeal from a decision of the Court of Appeal, which had upheld Judge Butter
QC, who had made an order that the appellant give up possession of 336
Stocksfield Road, London E17.
Stephen Sedley
QC and Heather Williams (instructed by Cartwright Cunningham) appeared for the
appellant; John Perry QC and Kevin Metzger (instructed by the solicitor to
Waltham Forest London Borough Council) represented the respondents.
In his speech,
LORD TEMPLEMAN said: For about two and a half years the appellant, Mr
Gary Thomas, made his home with his brother, Webster, in a council house, 29
Juniper Court, Morris Road, London E15, which belonged to and was let by the
respondent local authority, Waltham Forest London Borough Council, to Webster.
The letting was a secure letting for the purposes of the Housing Act 1985 and
the tenant, Webster, had security of tenure. The appellant was a person
contingently qualified to succeed to the tenancy by virtue of section 87 of the
Act of 1985. That section, so far as material, provides that:
A person is
qualified to succeed the tenant under a secure tenancy if he occupies the
dwelling-house as his only or principal home at the time of the tenant’s death
and either —
(a) he is the tenant’s spouse, or
(b) he is another member of the tenant’s family
and had resided with the tenant throughout the period of twelve months ending
with the tenant’s death; . . .
Section 113 of
the 1985 Act defines a tenant’s family in terms which include a brother.
On April 11
1988, both brothers changed their home to 336 Stocksfield Road, Walthamstow,
London E17, which was let to Webster by the respondents. Webster ceased to be a
secure tenant of 29 Juniper Court and became a secure tenant of 336 Stocksfield
Road. Webster died on April 21 1988.
The appellant
now claims to have succeeded to Webster’s secure tenancy of 336 Stocksfield
Road under section 87 of the 1985 Act because:
(a) he occupied 336 Stocksfield Road as his only
home when his brother died;
(b) he was a member of the brother’s family; and
(c) he had resided with his brother throughout
the period of 12 months ending with his brother’s death.
The respondent
council claim that the appellant did not succeed to the secure tenancy of 336
Stocksfield Road because he had not resided at 336 Stocksfield Road for 12
months before his brother died.
My lords,
section 87 does not stipulate that the successor must have resided at a
particular house for 12 months but only that he should have resided with the
deceased tenant for that period. The effect of section 87 is to ensure that a
qualified member of the tenant’s family, who has made his home with the tenant,
shall not lose his home when the tenant dies but shall succeed to that home and
to the secure tenancy which protected both the tenant and the successor while
the tenant was alive and which shall continue to protect the successor after
the death of the tenant. In order to qualify, a successor must have resided
with the tenant during the period of 12 months ending with the tenant’s death.
This restriction ensures that section 87 cannot be exploited, that there will
be no difficulty in identifying a genuine successor and that only bona fide
claims to have been residing with the tenant shall succeed. This protection for
the local authority does not require the residence to have taken place for the
whole 12 months in the house to which succession is claimed. The section
requires residence with the tenant only for the period of 12 months and I see
no justification for implying any other requirement.
When a tenant
and a potential successor move from one council house to another, the tenant
does not lose the protection of a secure tenancy and there is no good reason
why the potential successor should lose the protection which he has obtained or
is in the course of obtaining under section 87. When a tenant, who is not
already a council tenant, applies for a council house, the local authority,
before granting a secure tenancy, find out whether the council house will be
occupied by the tenant alone or whether the council house will become the joint
home of the tenant and a member of the tenant’s family who has been residing
with the tenant. The local authority will know whether if they let the council
house to the tenant the house will also be occupied by a potential successor
who has made his home with the tenant. If the tenant’s death is untimely, that
is to say within one year of the date of the letting, there is no reason why
the potential successor should lose his home if he has in fact resided with the
tenant for 12 months. In the present case the respondents have been unable to
suggest why the appellant should lose his home as well as his brother by reason
of the death of his brother. It frequently happens that a daughter lives with a
widowed parent for 20 years or more; if the parent changes council house or
moves from the private sector to a council house within one year of the death
of the parent, then on the death of the parent the council house will be the
home which contains all the furniture and other articles which form part of the
home and have been fitted into the council house by the parent and the
daughter. It would be cruel if the daughter could be evicted and left to find
another home for herself and for her belongings simply because of the accident
of the untimely death of the parent within one year. In the absence of express
language, section 87 should not be construed in a manner which can only, as in
the present case, produce unwelcome and unjustifiable distress and hardship in
the event of an untimely death.
In the present
case the Court of Appeal, Nourse and Stuart-Smith LJJ, upholding Judge Butter
QC, were reluctantly constrained to order the appellant to give up possession
of 336 Stocksfield Road to the respondents because of the earlier decision of
the Court of Appeal, Kerr and Woolf LJJ, in the case of South
Northamptonshire District Council v Power [1987] 1 WLR 1433. In that
case the appellant had made her home with a tenant of a private-sector house for
three years and continued to make her home with the tenant when he was granted
a secure tenancy of a council house. The tenant died within nine months after
the grant of the council house tenancy and it was held that section 87 did not
protect the appellant. Kerr LJ relied on the case of Collier v Stoneman
[1957] 1 WLR 1108. In that case it was held that the subtenant of part of a
house was not ‘residing with’ her mother in the whole house just because her
subtenancy entitled her to share the kitchen with her mother. In the case of Edmunds
v Jones (Note) [1957] 1 WLR 1118, also cited by Kerr LJ, a granddaughter
was allowed to occupy one room in the house of her grandmother and it was held
that the granddaughter was entitled to succeed to the tenancy of the whole
house. Those cases decided only that the successor must live with the tenant in
the whole of the premises. They do not approach the present problem which
arises when the successor lived with the tenant in different premises during
the qualifying period. Kerr LJ also relied on the reluctance of Viscount
Simonds expressed in Re ‘Wonderland’, Cleethorpes [1965] AC 58 at pp
70-71, to construe an ambiguity in a statute in a manner which derogated from
common law rights. But this principle does not constrain the courts to invent
an ambiguity or to construe an ambiguity in a way which does not make good
sense.
In the Power
case Woolf LJ agreed with Kerr LJ but left open the question whether there is
any difference under section 87 if the successor has resided for 12 months with
the deceased tenant in two or more council houses or has resided partly in a
council house and partly in private-sector accommodation: see p 1441H. I can
see no logical distinction. Section 87 requires that the successor shall occupy
the council house as his home at the death of the tenant and shall have resided
with the tenant during ‘the period of twelve months ending with the tenant’s
death’. It does not matter whether the successor and the tenant resided
together in one or more houses or whether the residences were all council
houses provided that they resided together in a council house at the moment of
death and provided that the successor and the tenant resided together during
the period of 12 months prior to the death of the tenant. In my opinion, the
case of South Northamptonshire District Council v Power [1987] 1
WLR 1433 was wrongly decided.
In his
exhaustive and helpful argument on behalf of the respondents, Mr Perry relied
on the Rent Acts and, in particular, on the amendments made by section 39 of
and Schedule 4 to the Housing Act 1988 dealing with private sector lettings,
whereby a successor was required to reside with the deceased tenant ‘in the
dwelling-house’ for the period of six months before the death of the tenant. The
Rent Acts dealing with private lettings contain a number of provisions which
are different from those which apply to local authority lettings under the 1985
Act. For reasons which are not stated, the legislature in 1988 made it
essential for a successor to live in the dwelling-house during the period of
six months but did not amend the 1985 Act so as to impose either a six-month
period or residence in a particular dwelling-house in the case of a council
house. The 1985 Act provides only that residence must be ‘with the tenant’. Mr
Perry also referred to the legislation which governs council houses in
Scotland, but it is impossible to imply in the 1985 Act express words which the
legislature chose to insert in the Rent Acts and in the Scottish Act (The Housing
(Scotland) Act 1987) but chose not to insert in the 1985 Act.
I would allow
the appeal and dismiss the respondents’ action. The respondents must pay the
costs of the appellant before your lordships and in the courts below.
LORDS
GRIFFITHS, LOWRY, MUSTILL and SLYNN OF HADLEY
agreed and did not add anything.
The appeal
was allowed.
