Secure tenant dying – Daughter not qualifying to succeed tenancy – Court finding granddaughter succeeding to tenancy – Local authority’ s claim for possession dismissed – Local authority appealing – Whether minor could succeed to a secure tenancy – Housing Act 1985 – Appeal dismissed
The appellant local authority owned a three-bedroomed house in Chessington, which they let to Mr Prince on a weekly tenancy. This became a secure tenancy when the Housing Act 1980 came into force. Mr Prince died in July 1996. Living with him at the time were his daughter, W, and her daughter, M, who was then aged 13. W had been living there for approximately six months and therefore was not qualified to succeed the tenant under section 87 of the Housing Act 1985. M, however, had been living there for about three years. The appellants served notice on W to vacate the property and brought possession proceedings against her. On April 14 1997 the court made a possession order. In August 1997 the district judge granted an application to join M as a party and to set aside the possession order. In February 1998 the county court heard the appellants’ appeal and held that a minor could succeed to a secure tenancy. The appellants’ claim for possession was therefore dismissed.
The appellants appealed. For the purposes of the appeal it was agreed that M fulfilled all three qualifications under section 87 of the Act. Nevertheless, the appellants contended that she was not entitled to succeed to the tenancy. It was submitted that the Act did not permit the separation of the legal and equitable interests, such as would have been necessary to cater for the fact that M could not hold the legal estate. It was further submitted that either “tenancy” in the 1985 Act referred only to the legal estate, and excluded an equitable tenancy, or the reference to “person” referred only to an adult person and excluded a minor.
Held The appeal was dismissed.
Nothing in the 1985 Act limited the operation of any of the provisions regarding succession or devolution of a term certain to adults. It had been established for some time, uncontroversially, that a minor could succeed to a statutory tenancy under the Rent Acts. A minor was quite capable of becoming a tenant, albeit only in equity. Housing legislation may include an equitable tenancy without catering for it expressly: see R v Tower Hamlets London Borough Council, ex parte Goetz The Times October 9 1998. If there was nothing to stop a local authority granting a tenancy effective in equity to a minor in appropriate circumstances, there could be no insuperable technical objection to parliament rendering that equitable tenancy secure. Nor was there any policy objection to including minors in the provisions. The provisions were not comparable in policy terms to local authorities’ duties to house the homeless. Had parliament wanted to limit the provisions to adults, it could have done so, but it did not. There was ample reason to conclude that children were not “non persons” in the law of landlord and tenant, let alone the law of property generally. It could not be assumed that they were omitted from legislation unless the contrary was expressed.
Kim Lewison QC and Kelvin Rutledge (instructed by the solicitor to Kingston upon Thames Royal London Borough Council) appeared for the appellants; James Goudie QC and Zia Nabi (instructed by Keppe Shaw) appeared for the respondent.
Sarah Addenbrooke, barrister
