Local authority — Dwelling-house — Right to buy — Tenant seeking to exercise right to buy — Landlord claiming tenant giving notice of withdrawal of claim — Whether statute requiring notice to be in writing — Appeal dismissed
The appellant lived in a property with his mother under a secure tenancy granted in 1969 by the local authority, its then owners. In 1989, his mother served the local authority with a written notice, pursuant to section 122 of the Housing Act 1985, claiming to exercise her right to buy. By section 123, she required that the appellant should share that right.
In order to fund the purchase, the appellant and his mother intended to exercise the right, under section 132 of the Act (later repealed), to require the local authority to advance a mortgage for the entire purchase price. In August 1989, the local authority served on the appellant and his mother two notices, pursuant to sections 124 and 125, admitting their right to buy at a discounted price of £27,000. They were also informed that should they wish to exercise their right to buy, they should do so by serving written notice within three months.
The appellant and his mother did not exercise their right to a mortgage and, in February 1990, the housing department recorded that the claim to buy the property had been cancelled. In July 1990, the local authority transferred its housing stock, including the freehold interest in the property, to the respondent. Following his mother’s death in March 2001, the appellant informed the respondent that he proposed to exercise the right to buy pursuant to the 1989 notice. The respondent contended that he was unable to do so.
The county court dismissed the appellant’s application, under section 138(3) of the Act, for an injunction requiring the respondent to convey the freehold interest in the property to him. It found that, in February 1990, the appellant or his mother had told the local authority that they did not intend to proceed.
The appellant appealed, contending that the Act gave no effect to any oral withdrawal of a notice that claimed to exercise the right to buy, since section 122(3) required any notice to be in writing.
Held: The appeal was dismissed.
The jurisdictional threshold set by section 138(1) had not been satisfied. Prima facie, there had been an express abandonment of the appellant’s right to buy on the ground that the appellant and his mother had expressly informed the local authority that they did not intend to proceed with the purchase.
Although any withdrawal within the meaning of the Act had to be by notice in writing, the court was not precluded from exercising elementary principles of common law and equity in respect of those who asserted rights that they had abandoned or waived, or were estopped from asserting, or which, in the light of their actions or otherwise, it would be inequitable for them to assert. It could not be said that the Act was so comprehensive as to preclude the application of such elementary principles: Copping v Surrey County Council [2005] EWHC 754 (QB); [2005] 2 EGLR 56; [2005] 34 EG 110 considered; Collin v Duke of Westminster [1985] 1 EGLR 109; (1985) 273 EG 881 distinguished.
Jeremy Garrood (instructed by RJR Solicitors, of Ryde) appeared for the appellant; Jeremy Burns (instructed by Dutton Gregory, of Bournemouth) appeared for the respondent.
Eileen O’Grady, barrister
