Secure tenancy – Housing Act 1985 – Succession – Married couple holding secure tenancy of property from respondent council as joint tenants – Husband leaving but wife and appellant daughter continuing to live in property until death of wife – Whether appellant entitled to succeed to secure tenancy – Whether husband continuing to hold tenancy by survivorship – Whether respondents entitled to possession – Appeal dismissed
The appellant’s parents had since 1980 been joint tenants of a property under a secure tenancy from the appellant council. Although the marriage failed and the appellant’s father left, the appellant and her mother continued to live in the property until the mother’s death in 2007. The respondents then served notice to quit on the father and brought possession proceedings against the appellant. They contended that, on the mother’s death, the tenancy had vested in the father by survivorship and, since he did not reside in the property, the tenancy had ceased to be a secure tenancy such that they were entitled to determine it by notice. The appellant contended that she was entitled to succeed to the secure tenancy, under sections 87 to 89 of the Housing Act 1985, and to remain in the property.
The respondents’ possession claim was allowed by a district judge; that decision was reversed by a judge but reinstated by the Court of Appeal, which held that the provisions of Part IV of the 1985 Act did not displace the general rule that where a tenancy was granted to two persons as joint tenants and one of those persons died, the tenancy became vested in the survivor as sole tenant: [2010] EWCA Civ 868; [2010] 2 EGLR 147. The appellant appealed to the Supreme Court.
She contended that sections 87 to 89 of the 1985 Act constituted an exhaustive code governing the fate of a secure periodic tenancy on the death of a tenant and that the operation of those provisions was mandatory and displaced the general law.
Held (Lord Mance and Lord Clarke dissenting): The appeal was dismissed.
The provisions of the 1985 Act did not wholly displace the general law, even in the area that they covered; they were concerned only with the transmission of secure tenancies and did not deal expressly with the subsisting contractual and proprietary relationship between a landlord and an existing tenant who had not died or disposed of his interest. The Act necessarily operated by reference to certain basic principles of property law that served to identify the legal characteristics of the estates in land the transmission of which it regulated. The rules of the common law applied except to the extent that they were abrogated or modified by the words of the statute.
One of the legal incidents of a joint tenancy at common law was that, on the death of one of two joint tenants, the interest of the deceased person was extinguished and the survivor became the sole tenant. There was nothing in the language of the Act or inherent in its purpose that excluded the operation of the relevant features of the general law relating to joint tenancies. There were no express words to indicate that the rights of a surviving joint tenant were to be expropriated. It was not necessary to provide for the transmission of a tenancy on death unless there was a vacancy and, where the tenancy continued to subsist in the surviving joint tenant, there was no such vacancy. The recognition of the right of the survivor under a joint tenancy was not inconsistent with the provisions of section 89 relating to the transmission of tenancies since the survivor’s right was not a matter of transmission; the survivor had the same rights as he had always had.
The appellant could not succeed to the secure tenancy unless each of the conditions laid down by section 89 of the 1985 Act were met. One of those conditions, that a “secure tenant” had died, was not met. Where property was held under a joint tenancy, there was only one tenant, albeit that there were two or more people who jointly constituted that tenant. Accordingly, in the instant case the tenant had not died since the appellant’s deceased mother was only one of the two people who together constituted the tenant: Tennant v Hutton (CA) unreported 9 July 1996 applied. The tenancy did not vest in the appellant on the death of her mother since the rights of the previous tenant still subsisted. On the death of the appellant’s mother, the father became sole tenant by survivorship. Since he did not occupy the property as his only or principal home, the “tenant condition” in section 81 ceased to be satisfied, such that the tenancy, while continuing to exist, was no longer secure. The father could have revived its secure status by returning to live in the property at any time before it was terminated by service of a notice to quit, but had not done so. Consequently, the respondents had been entitled to determine the tenancy and obtain possession.
That position was unaffected by the provisions of section 88 of the 1985 Act, by which a joint tenant who became the sole tenant was deemed to be a “successor” for the purpose of section 87, notwithstanding that there was no transmission of the tenancy at common law. That provision did not mean that the appellant’s father, as the deemed successor of the mother, had to compete with the claim of his daughter to succeed to the tenancy. It simply meant that, since there was deemed to have been a succession on the mother’s death, there could not thereafter be another one. The provisions of sections 87 and 88 were there for the protection of the landlord against being kept too long out of the property. They did not serve to create rights of succession in resident family members that would not otherwise exist.
Jan Luba QC and Nicholas Nicol (instructed by QualitySolicitors Evans Derry, of Solihull) appeared for the appellant; Bryan McGuire QC and Catherine Rowlands (instructed by the legal department of Solihull Metropolitan Borough Council) appeared for the respondents.
Sally Dobson, barrister
