Secure periodic tenancy — Succession by under-age daughter of deceased — Holder of legal estate — Judge making declaration that legal estate vesting in executrix as trustee — Appeal dismissed
The appellant and her mother had lived in a property held on a secure periodic tenancy from the claimant council. Upon her mother’s death, when the appellant was 15 years old, the appellant became qualified to succeed to the tenancy under section 87 of the Housing Act 1985, and it vested in her pursuant to section 89. However, being under age, she was not capable of holding the legal estate by virtue of section 1(6) of the Law of Property Act 1925, and therefore only the equitable tenancy vested in her. The deceased had left a will in which she had appointed her sister, H, as her executrix and trustee of her estate. The will directed that the whole of the deceased’s net estate should be held upon trust for the first defendant.
Confusion arose among the parties as to where the legal estate lay, with those acting for the appellant contending that it vested in the council in trust for the appellant, or that it was in suspension. The council brought proceedings for declarations that, upon the death of her mother, the appellant had succeeded to the equitable tenancy, and H had become the trustee of the legal tenancy. The judge granted those declarations. The appellant appealed, seeking to clarify the position for housing benefit purposes.
Held: The appeal was dismissed.
No good reasons existed for the view that the legal estate had vested in the council on the deceased’s death, or that the legal estate was in suspension. The will expressly provided for a recipient of the legal estate in the shape of H. The idea of a landlord being a trustee of the demised premises for the benefit of the tenant was a very curious one, to which effect should not be given without express provision: Kingston upon Thames Royal London Borough Council v Prince (1999) 31 HLR 794 applied. That view was expressly supported by the provisions of the Trusts of Land and Appointment of Trustees Act 1996.
Matthew Feldman (instructed by Norman H Barnett & Co) appeared for the appellants; Charles Davies (instructed by the solicitor to Newham London Borough Council) appeared for the respondents.
Sally Dobson, barrister
