Right of succession — Entitlement to assured tenancy — Part I of Schedule 1 to Rent Act 1977 — Assignment — Landlord terminating tenancy held by appellant — Whether assignment in breach of tenancy under section 15 of Housing Act 1988 — Appeal dismissed
On the death of the appellant’s mother, both the appellant and her brother claimed entitlement to succeed to her assured tenancy under the provisions of Part I of Schedule 1 to the Rent Act 1977. They eventually reached an agreement whereby the brother gave notice to the respondent landlord stating: “I hereby give up all my rights to my sister.”
The landlord granted the appellant an assured shorthold tenancy, but this was terminated by notice shortly afterwards. The appellant maintained that she was entitled to remain in the property because she held an assured periodic tenancy, assigned to her by her brother. The landlord brought possession proceedings. Allowing the landlord’s claim, the judge held that the brother’s letter was not to be interpreted as an assignment, which, in the absence of the landlord’s consent, would have been a breach of any assured tenancy by succession by virtue of section 15 of the Housing Act 1988. He held that the letter had instead effected a surrender of the brother’s right of succession. The appellant appealed.
Held: The appeal was dismissed.
The appellant’s argument, that there had been an assignment to her of an assured periodic tenancy, was premised on the assumption that her brother was, at the relevant time, an assured tenant by succession. This was inconsistent with her contention that she was also entitled by succession. Until the identity of the successor had been established, there was no assured tenant; for as long as there were rival claimants, there was no assured tenancy. At the date of the brother’s letter, both he and the appellant were claiming an entitlement to succeed. The judge had correctly found that the letter was intended to surrender the brother’s right to succession, in order that the appellant could become the sole successor. The letter was in the form of a notice to the landlord, and not of an assignment. Its wording was consistent with the giving up of rights under the 1977 Act, and inconsistent with a claim to be an existing tenant. Moreover, in the light of the fact that an assignment would have been in breach of any tenancy by virtue of section 15 of the 1988 Act, the letter was to be construed in accordance with the statutory framework, and not in a way that flouted it.
John Smart (instructed by Avadis & Co) appeared for the appellant; David Brounger (instructed by Ronald Fletcher & Co, of Maida Vale) appeared for the respondent.
Sally Dobson, barrister
