Secure tenancy – Alternative accommodation – Respondent tenant purporting to exercise right to buy – Appellant council offering alternative accommodation and seeking possession order – County court finding alternative accommodation unsuitable since tenant losing right to buy – Whether judge erring in law – Whether reasonable to make possession order – Appeal allowed
In 1979, the respondent’s parents held a six-bedroom house (the property) on a secure tenancy from the appellant council. The respondent and her siblings had also resided there. In 1983, the father left and, in March 2000, the tenancy was transferred into the mother’s sole name. The respondent, who was a single mother with one son, had joined the army in 1995 but left in 2003 to care for her mother, who was seriously ill. She was a single parent with one son. When her mother died in 2004, none of the respondent’s siblings occupied the property and she succeeded to the tenancy.
In July 2005, the appellants served a notice seeking possession of the property on the basis that it was more extensive than was reasonably required by the respondent in accordance with ground 16 of Schedule 2 to the Housing Act 1985. in August 2005, the respondent applied to purchase the property under the right-to-buy provisions of the 1985 Act, but the appellants offered her alternative accommodation and issued proceedings for possession of the property. The respondent counter-claimed for an order requiring the appellants to convey the property.
At the hearing, it came to light that the property and all the alternative houses that had been offered to the respondent were to be the subject of a block transfer to a registered social landlord. The respondent conceded that the accommodation afforded by the property was more extensive than she reasonably required. She, however, argued that should the appellants obtain an order for possession, she would lose her right to buy the property and would have to start afresh with a new tenancy of an alternative property. Further, she would be an assured tenant of the alternative property once it was transferred to the social landlord with the less advantageous right to acquire under the Housing Act 1996.
The appellants argued that by reason of para 4 of Schedule 4 to the 1985 Act, the respondent could rely upon her period of occupation of the property since the age of 16 and, on being granted a secure tenancy of an alternative property, she could exercise her right to buy. The judge held that, by virtue of section 121 of the 1985 Act, a possession order would have the effect of bringing the current tenancy to an end and she would not be entitled to carry forward the period of occupation of the property to the new tenancy to qualify her for the right to buy. The loss of the right to buy was decisive, the alternative accommodation was not suitable and it would not be reasonable to make a possession order. The appellants appealed.
Held: The appeal was allowed.
The accommodation was suitable and it was reasonable to make a possession order.
On the proper construction of section 121, where the right to buy a dwelling–house had arisen pursuant to section 119(1) and Schedule 4, the tenant could not exercise it in respect of that dwelling-house if he were obliged to give up possession pursuant to an order. That was the natural meaning of words and there was no warrant for giving section 121(1) any wider meaning.
Although section 121 destroyed the secure tenant’s right to buy the dwelling-house that was subject to a possession order, it said nothing about the right to buy another dwelling-house of which the secure tenant became a tenant.
Under the statutory scheme, if the secure tenant was to have the right to buy the freehold of the dwelling-house of which he was the tenant and the landlord was the freeholder, the conditions of Schedule 4 relating to the period to be taken into account for the purposes of section 119 had to be satisfied, and that period had to be of at least the number of years specified in section 119(1). The provisions were mandatory and there was nothing in the language of section 119 or Schedule 4 that expressly required the qualifying period to be one during which the secure tenant, either the original tenant or the tenant by succession to a deceased secure tenant, had occupied the dwelling-house in respect of which he was given the right to buy as his only or principal home: Kensington & Chelsea London Borough Council v Hislop [2003] EWHC 2944 (Ch); [2004] HLR 26 and Basildon District Council v Wahlen [2006] EWCA Civ 326; [2006] 1 WLR 2744 considered.
Terence Gallivan (instructed by the City Solicitor, Manchester) appeared for the appellants; Paul Whatley (instructed by Clifford Johnston & Co, of Manchester) appeared for the respondent.
Eileen O’Grady, barrister
