Housing Act 1985 — Secure tenant — Succession — Whether tenant from whom succession was claimed was herself a successor, so that the claimant was disqualified under the concluding words of section 87 — Whether the deceased tenant had been a joint tenant and had become the sole tenant within the meaning of the section 88(1)(b) — Joint tenancy terminated by husband before his death and new tenancy granted by council to wife, who had been joint tenant with husband — County court judge’s decision that the son’s claim to succeed was ruled out by sections 87 and 88 reversed by Court of Appeal
subject house, which fell within the provisions of Part IV of the Housing Act
1985, was let by the local council to the appellant’s parents on a weekly
tenancy as joint tenants — The critical events which gave rise to this appeal
took place within a period of a few months in 1989 — First of all the
appellant’s father purported to terminate his part of the joint
agreement to the appellant’s mother — Not long afterwards the mother died — The
appellant, who fulfilled the residence qualification in section 87(b), claimed
to be entitled to succeed to his mother’s tenancy — The county court judge
rejected his claim and made a possession order against him, from which he
appealed
held that the appellant’s claim was ruled out because his mother was herself a
successor within the words of section 88(1)(b), having been a joint tenant who
had become the sole tenant — Fox LJ indicated what the Court of Appeal
considered to be the fallacy underlying this view — First of all, however, it
was necessary to note that the joint tenancy was terminated by the notice given
by the appellant’s father — One joint tenant can determine a short periodic
tenancy of the kind in question: Greenwich London Borough Council v McGrady — Then
it was necessary to analyse carefully what happened — It was true that the
appellant’s mother had been a joint tenant and had later been a sole tenant,
but the statute was concerned with succession to a single tenancy — She had
been a joint tenant under the 1982 tenancy but she had never been a sole tenant
under that tenancy; she could only have become so if her husband had
predeceased her or had released his joint interest, but neither event happened
— She became a sole tenant under the 1989 tenancy but she was never a joint
tenant under that tenancy — The fallacy was in confusing the property with the
tenancy — She was successively a joint tenant and then a single tenant of the
property, but she was never both a joint tenant and a single tenant under one
tenancy
was that the appeal succeeded and the order for possession against the
appellant must be discharged
The following case is referred to in this
report.
Greenwich London Borough Council v McGrady (1982) 81
LGR 288; 46 P&CR 223; [1983] EGD 519; 267 EG 515, [1983] 2 EGLR 32, CA
This was an appeal by Christopher Renshaw
against the decision of Judge Heald, at Worksop County Court, whereby he was
ordered to yield up possession of 33 Ramsden Avenue, Worksop, of which his late
mother, Freda Renshaw, had been the tenant, to Bassetlaw District Council.
Godfrey Jarand (instructed by Edwin Coe,
agents for Jackson Quinn, of Nottingham) appeared on behalf of the appellant;
Lincoln Crawford (instructed by the solicitor to Bassetlaw District Council)
represented the respondents.
Giving judgment, FOX LJ said: This
is an appeal by the defendant, Mr Christopher Renshaw, from a decision of Judge
Heald at Worksop County Court that he give possession to Bassetlaw District
Council of a house at 33 Ramsden Avenue, Worksop (‘the house’).
On June 6 1982 the house was let by the
council to Graham and Freda Renshaw (the appellant’s parents) on a weekly
tenancy as joint tenants.
By a notice dated the March 20 1989, and
received by the council on March 31 1989 Graham Renshaw gave notice in the
following terms:
I wish to give one month’s notice
terminating my part of the tenancy of 33 Ramsden Avenue on 1.5.89.
On May 1 1989 a new tenancy agreement was
entered into whereby the council let the house to Freda Renshaw. It was signed
by, or on behalf of, those parties. Freda Renshaw died on July 6 1989.
The house is property which falls within
the provisions of Part IV of the Housing Act 1985. Sections 87 and 88 of the
Act deal with succession on the death of the tenant. The sections are in the
following terms:
87. 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 has resided with the tenant throughout the period of twelve months ending
with the tenant’s death; . . .
88. –(1)
The tenant is himself a successor if —
(a) the tenancy vested in him by virtue of
section 89 (succession to a periodic tenancy), or
(b) he was a joint tenant and has become the sole
tenant, or
(c) the tenancy arose by virtue of section 86
(periodic tenancy arising on ending of term certain) and the first tenancy
there mentioned was granted to another person or jointly to him and another
person, or
(d) he became the tenant on the tenancy being
assigned to him (but subject to subsection (2) and (3)), or
(e) he became the tenant on the tenancy being
vested in him on the death of the previous tenant.
(2)
A tenant to whom the tenancy was assigned in pursuance of an order under
section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in
connection with matrimonial proceedings) is a successor only if the other party
to the marriage was a successor.
(3)
A tenant to whom the tenancy was assigned by virtue of section 92
(assignments by way of exchange) is a successor only if he was a successor in
relation to the tenancy which he himself assigned by virtue of that section.
(4)
Where within six months of the coming to an end of a secure tenancy
which is a periodic tenancy (‘the former tenancy’) the tenant becomes a tenant
under another secure tenancy which is a periodic tenancy, and —
(a) the tenant was a successor in relation to the
former tenancy, and
(b) under the other tenancy either the
dwelling-house or the landlord, or both, are the same as under the former
tenancy,
the tenant is also a successor in
relation to the other tenancy unless the agreement creating that tenancy
otherwise provides.
Any material tenancy of the house was a
secure tenancy for the purposes of the Act.
The appellant claims that on the death of
Freda Renshaw he became entitled to succeed her as a secure tenant of the house
because it was his principal home at the time of her death and he was a member
of her family, who had resided with her throughout the period of 12 months ending
with her death. The facts which he so asserts were accepted by the judge as
established.
If, however, Freda Renshaw was herself a
‘successor’ as defined in section 88 the successor provisions of section 87 are
excluded (see the concluding words of section 87).
The judge held that the case came within
section 88(1)(b) in that Freda Renshaw was a joint tenant who had become
the sole tenant. Accordingly, he made an order for possession against the
appellant.
The first question is whether the joint
tenancy of the house was determined. One joint tenant can determine a short
periodic tenancy of the sort with which we are concerned in this case: Greenwich
London Borough Council v McGrady (1982) 267 EG 51. The judge found
that it was determined. He said that Mrs Renshaw’s tenancy ‘succeeded
immediately upon the termination of the joint tenancy’. There is no
respondent’s notice as to that. So the point is concluded for the purpose of
this appeal. I only add that if the notice given by Graham Renshaw on March 20
1989 did not operate as a determination as from May 1 it would seem that (as
against the council for the purposes of this appeal) the tenancy must have been
determined by the grant and acceptance of the new tenancy to Freda Renshaw on
May 1.
The joint tenancy having been determined,
the next question is whether the case comes within section 88(1)(b). In
my view, it does not. It is said that the literal meaning of para (b) is
satisfied. Freda Renshaw, it is said, was a joint tenant and became the sole
tenant. I do not think that is correct. Section 87 is concerned with succession
to a tenancy. It provides that: ‘A person is qualified to succeed the tenant
under a secure tenancy . . .’.
Thus, the statute is dealing with
succession to a single tenancy. That is emphasised by the repeated use of the
words ‘the tenancy’ in section 88. Paras (a), (c), (d) and
(e) all refer to ‘the tenancy’. For example, when, in para (a),
the draftsman says ‘the tenancy vested in him . . .’, he must be referring to a
single tenancy which was originally vested in somebody else but vested in the
tenant under section 89. Moreover, section 88 opens with the words ‘The tenant
is himself a successor if . . .’. The words ‘the tenant’ are, it seems to me,
directly related to the words ‘the tenancy’ in the subparagraphs. The language
and structure of sections 87 and 88 all indicate that Parliament was dealing
with a single tenancy.
It is said, however, that para (b)
alone makes no reference to ‘the tenancy’ and one must construe it literally. I
do not think that the omission of the words ‘the tenancy’ in para (b) is
significant. In my view, it is clear that para (b) is referring to a
person who was a joint tenant and has become the sole tenant under the terms of
the tenancy agreement, which is the subject matter of the claim to succession.
The literal meaning cannot have been intended because it would extend,
for example, to the case of a person who had a joint tenancy which determined,
who then went out of possession and after some years took a new tenancy of the
house in his or her name alone. I think the construction which I have adopted
follows from the structure of the sections. Section 87 is dealing with
succession to a secure tenancy. It provides, in effect, that there should be no
succession if the tenant was himself a successor.
Section 88 opens with the governing words
‘The tenant is himself a successor if . . .’. ‘Successor’ there must mean
successor to the tenancy referred to in section 87. When, therefore, the
draftsman in para (b) says ‘he was a joint tenant and has become the
sole tenant’ he must be referring to the ‘secure tenancy’ referred to in
section 87. As a matter of language, there is really nothing else he could be
referring to.
Approaching the case, therefore, on the
basis that the sections are concerned with a single tenancy, the position is as
follows. Freda Renshaw was a joint tenant under the 1982 tenancy but she was
never a sole tenant under that tenancy. She could only have become so if Graham
Renshaw had pre-deceased her or had released his joint interest. Neither event
happened. The notice of March 1989 did not purport to be a release (even
assuming that release could be achieved by a document not under seal).
So far as the 1989 tenancy is concerned,
Freda Renshaw was never a joint tenant of that tenancy. Thus, while she was a
joint tenant of the 1982 tenancy she was never the sole tenant and while she
was the sole tenant of the 1989 tenancy she was never a joint tenant of it.
In construing para (b) it is
important not to confuse the property with the tenancy. Freda Renshaw was
successively a joint tenant and then a single tenant of the property. But she
was never both a joint tenant and a single tenant under one tenancy. I should
add that the council accepts that section 88(4) is not applicable to this case.
The result, in my opinion, is that the
appeal succeeds and that the offer for possession should be discharged.
BELDAM and LEGGATT LJJ agreed and did
not add anything.
Order made for costs in Court of Appeal
and in court below and for legal aid taxation of appellants’ costs.
