Secure tenancy – Succession – Section 87 of Housing Act 1985 – Requirement of residence with tenant for year preceding tenant’s death – Appellant retaining own flat during that period but moving into father’s flat to care for him – Whether entitled to succeed to father’s secure tenancy – Whether respondent landlords entitled to possession – Appeal dismissed
Until his death in June 2005, the appellant’s father occupied a flat let by the respondent council on a secure tenancy. Following his death, the appellant claimed the right to succeed to the secure tenancy under section 97 of the Housing Act 1985. The respondents disputed that right and brought possession proceedings against the appellant in the county court.
The county court judge accepted the respondents’ claim and granted a possession order in respect of the flat. He found that although the appellant had occupied the property as her only or principal home at the time of her father’s death, she had not “resided with” him throughout the preceding 12 months, as required by section 87. He reached that conclusion notwithstanding that the appellant had stayed with her father at the flat for the entire 12-month period, having moved in to care for him after his health deteriorated. During that time, she had retained ownership of another flat, which she had kept as her address for correspondence and in respect of which she had continued to pay the television licence, utilities and council tax. It had remained unoccupied for most of the year preceding her father’s death, although she had allowed friends to stay there in early 2005 and, in June 2005, had let it on a short assured tenancy for six months.
The appellant appealed against the possession order. The central issue on appeal was whether mere physical presence in a property with the tenant, tending him full-time, was sufficient to qualify her as residing with that tenant or, if not, what more was required.
Held: The appeal was dismissed.
A narrow construction of the words “resided with” should be favoured so as not to confer benefits on those whom the legislation had not been intended to benefit. A significant element of “residing with” the tenant of a property was that the purported successor should have the purpose of living in the premises as a member of the tenant’s household and making his or her home there. Something that could fairly be called “home-making” was required and mere temporary residence would not suffice. The retention of another home, although not fatal, could be a significant factor in deciding that a person was not making his or her home in the premises in question: Collier v Stoneman [1957] 1 WLR 1108, Foreman v Beagley [1969] 1 WLR 1387, Swanbrae Ltd v Elliott [1987] 1 EGLR 99; (1987) 281 EG 916 and Hildebrand v Moon [1989] 2 EGLR 100; [1989] 37 EG 123 applied. The intention of the purported successor was important in deciding whether he or she had “resided with” the tenant. There had to be, to a significant degree, an intention of making a home with the tenant, rather than just staying there, and the nature of the occupation had to have those qualities for the entire year preceding the tenant’s death. An intention to live with the tenant to nurse him did not preclude residing with him, but, on the other hand, was not conclusive of it. The county court judge had not erred in his approach and had been entitled to conclude that the appellant had not “resided with” her father throughout the year preceding his death.
Nicholas Isaac (instructed by Mary Ward Legal Centre) appeared for the appellant; Christopher Baker (instructed by the legal department of Islington London Borough Council) appeared for the respondents.
Sally Dobson, barrister
