Housing Act 1985, section 87–Succession to secure tenancy–Construction–Defendant, who claimed the right of succession, had lived with his brother throughout the period of 12 months ending with the latter’s death–Defendant had not, however, lived all that time in the premises in which the brother was residing at the time of his death–Whether section 87 required as a condition of succession that the residence throughout the period of 12 months had been at the premises at which the tenant resided at the time of his death–Decision in South Northamptonshire District Council v Power held to be conclusive against defendant’s claim to succession–Appeal against county court judge’s decision dismissed
were that for about two and a half years before the brother’s death the
defendant (the present appellant) lived continuously with his brother at two
addresses, formerly at 29 Juniper Court, Morris Road, London E15, but during
the last 10 days before the brother’s death at 336 Stocksfield Road,
Walthamstow, London E17–The landlords of both houses were the London Borough of
Waltham Forest, the present respondents, and the brother had held a secure
tenancy at each house within section 79 of the 1985 Act–Judge Butter QC, at Bow
County Court, held that the defendant did not qualify for succession under
section 87 of the 1985 Act and granted the landlords an order for
possession–The defendant appealed
disputed on appeal that a number of the conditions laid down by section 87 were
satisfied–The deceased brother had been a tenant under secure tenancies of both
premises and was not himself a successor as defined by section 88; the
appellant had occupied 336 Stocksfield Road as his only or principal home at
the time of his brother’s death; the appellant was another member of the
brother’s family within section 113 of the 1985 Act; and the appellant had
lived under the same two roofs as the brother, being roofs owned by the same
local authority, throughout the period of 12 months ending with the brother’s
death–Did this not add up to an entitlement to succession?
which proved fatal to the appellant’s claim was whether he had ‘resided with
the tenant’ throughout the necessary period of 12 months ending with the
tenant’s death within the meaning of section 87–The Court of Appeal held that
they were constrained by the decision in South Northamptonshire District
Council v Power to decide that the appellant had not resided with the tenant
in the sense required–The court accepted the construction that the tenant and
the successor must have resided throughout the 12-month period in the
particular premises of which the tenant was the secure tenant at the date of
his death–It was immaterial that the two brothers had resided together in the
same house for over two years and had moved to another house only 10 days
before the tenant’s death–The court rejected attempts to show that the present
case was distinguishable from the South Northamptonshire decision, relying on
passages in the judgments of Woolf and Kerr LJJ in that case–The ratio of the
South Northamptonshire decision was too clear to permit of distinction–Appeal
dismissed
The following cases are referred to in
this report.
Collier v Stoneman [1957] 1 WLR 1108;
[1957] 3 All ER 20, CA
Edmunds v Jones [1957] 1 WLR 1118, CA
South Northamptonshire District Council v Power [1987] 1 WLR
1433; [1987] 3 All ER 831, CA
This was an appeal by the defendant, Mr
Gary Thomas, from the decision of Judge Butter QC, at Bow County Court,
granting the plaintiffs, Waltham Forest London Borough Council, an order for
possession of premises at 336 Stocksfield Road, Walthamstow, London E17.
Miss Heather Williams (instructed by
Watson Robert) appeared on behalf of the appellant; Kevin Metzger (instructed
by the solicitor for the London Borough of Waltham Forest) represented the
respondent authority.
Giving judgment, NOURSE LJ said:
This is an appeal from a decision of His Honour Judge Butter QC given in the
Bow County Court on July 4 1990. It raises a short question of construction on
section 87 of the Housing Act 1985. Notwithstanding Miss Williams’
well-sustained argument on behalf of the appellant, I think that the question
was settled by the decision of this court in South Northamptonshire District
Council v Power [1987] 1 WLR 1433.
The appellant is Mr Gary Thomas. He had a
brother named Webster Thomas, who died on April 21 1988. For about two and a
half years before Mr Webster Thomas’ death he and the appellant lived
continuously together, formerly at 29 Juniper Court, Morris Road, London E15,
but from April 11 1988 at 336 Stocksfield Road, Walthamstow, London E17. At
each of those premises Mr Webster Thomas was a tenant of the respondents, the
London Borough of Waltham Forest, under a secure tenancy within section 79 of
the 1985 Act.
The question for decision is whether the
appellant was or was not qualified to succeed to the secure tenancy of 336
Stocksfield Road on the death of Mr Webster Thomas. If the tenancy of 29
Juniper Court had still been subsisting, the appellant’s qualification to
succeed would not have been in doubt. However, that tenancy was replaced by the
new tenancy of 336 Stocksfield Road on April 11 1988, 10 days before Mr Webster
Thomas’ death at the early age of 33. It is that unfortunate event which has
given rise to the question in dispute.
Section 87 of the 1985 Act is in these
terms:
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;
unless, in either case the tenant was
himself a successor, as defined in section 88.
As to that section, four points are not
in dispute. First, the tenant, Mr Webster Thomas, was a tenant under secure
tenancies of both premises and was not himself a successor as defined in
section 88. Second, the appellant occupied 336 Stocksfield Road as his only or
principal home at the time of Mr Webster Thomas’ death. Third, the appellant,
as Mr Webster Thomas’ brother, was another member of his family within section
113 of the 1985 Act. Fourth, the appellant had lived under the same two roofs
as Mr Webster Thomas, being the roofs of premises owned by the same local
authority, throughout the period of 12 months ending with the latter’s death.
The question arises out of the fourth of
these points. What is meant by the words ‘has resided with the tenant’? The respondents contended that the tenant and
the successor must have resided throughout the 12-month period in the premises
of which the tenant was the secure tenant at the date of his death. The
appellant contends that it is enough for them to have resided throughout that
period in one or more premises of which the tenant was the secure tenant, for
which purpose it is unnecessary for the landlord of the different premises to
be the same, although he was in fact the same in this case. Judge Butter
preferred the contention of the respondents. He made an order for possession of
336 Stocksfield Road, against which the appellant has now appealed to this
court.
The principal argument advanced on behalf
of the appellant by Miss Williams is founded on the fact that ‘the tenant’
referred to in para (b) of section 87 must be a tenant under a secure
tenancy; that necessarily follows from the opening words of the section. Thus,
she argues, the only requirement is that a person who is otherwise qualified to
succeed should have resided with the tenant for the specified period while he
was a secure tenant, there being no further requirement for the residence to
have been in any particular premises. If that were a correct view of the
section, it appears clear that the appellant would be entitled to succeed in
this case.
However, Miss Williams is confronted with
the decision of this court in the South Northamptonshire case. There the
secure tenant was a Mrs Tulloch who, when she died, had been the tenant of the
premises for only nine months. Before that she had lived on for three years in
the former matrimonial home of herself and her deceased husband with another
man who moved with her to the new premises. After her death he claimed to be
qualified to succeed to the secure tenancy under the predecessor of section 87,
section 30(2) of the Housing Act 1980. It was held that the words ‘resided
with’ required a connection with the premises of which the tenant had been the
secure tenant and that, since Mrs Tulloch and the claimant had resided in those
premises for only nine months, the claim failed. The decision was arrived at by
applying analogous decisions under the Rent Acts.
The leading judgment was given by Kerr
LJ. The essence of his decision is expressed in a passage at [1987] 1 WLR p
1436 B-C:
The reference in section 30(2)(b) of the
Act of 1980 is to the requirement that the member of the family ‘has resided
with the tenant’. This suggests a connection with the premises of which he
claims to be a successor to the tenant. The words ‘resided with’ are to be
contrasted with the words ‘live together’ as husband and wife. Of course, the
expression ‘living together as husband and wife’ is a colloquial phrase, and
one cannot place too much emphasis on it. But the word ‘resides’ connotes a
connection with the property and not merely a close relationship with the
person who was the tenant of it.
The other member of the court was Woolf
LJ. The essence of his decision is expressed in a passage at p 1441D:
Having regard to the long-standing
decisions of this court, to which Kerr LJ has referred in the course of his
judgment on the interpretation of ‘residing with’ in relation to the Rent Act
1977, and the predecessor legislation to that Act, it appears clear to me that
where the Act refers to a tenant and sets out the qualifications which have to
be fulfilled before there can be succession, it is speaking of the person who
has, throughout the relevant period, been the tenant of those premises.
The decisions under the Rent Acts were Edmunds
v Jones (Note) [1957] 1 WLR 1118 and Collier v Stoneman
[1957] 1 WLR 1108. Miss Williams has referred us to the judgments in Edmunds
v Jones and also to other authorities referred to in the judgment of
Kerr LJ. She has made submissions in regard to those authorities, but it is
clearly not open to us to say that the members of this court in the South
Northamptonshire case in some way erred in arriving at the decision at which
they did arrive on the basis of those authorities.
Accordingly, Miss Williams’ only course
is to persuade us that the present case is distinguishable from that decision.
That, indeed, she has sought to do by relying on a passage at the end of Woolf
LJ’s judgment at p 1441H:
I would leave open the question argued by
Mr Hunter on behalf of the local authority, as to whether it would be
sufficient compliance with the requirements of section 30(2) if Mrs Tulloch had
throughout the period of 12 months, ending with her death, been a secure tenant
of one or more local authorities and not necessarily a secure tenant of the
particular premises. Mr Hunter submitted that it would be sufficient if she had
been such a secure tenant.
Miss Williams also points to an observation
in the judgment of Kerr LJ at p 1434H, where he said of Mrs Tulloch:
She had not previously been a council
tenant anywhere. I mention that for the sake of completeness, but I am not
convinced that the position would in that event have been different, though I
express no view about it.
Relying on those passages, Miss Williams
submits that it is open to this court to take a different view on the different
facts of this case, it being agreed on all sides that over the whole period
when the appellant resided with him Mr Webster Thomas was a tenant under secure
tenancies, whereas Mrs Tulloch had never been a secure tenant of any premises
for more than nine months.
In my judgment, we cannot accede to that
submission. As I have already pointed out, the basis of the decision of this
court in the South Northamptonshire case is clear. Accepting that basis,
we have no alternative but to decide this case in the same way and against the
appellant. I have a little difficulty in understanding Woolf LJ’s reference to
leaving open the question which has now arisen, because to decide it in favour
of the appellant would seem to undermine the basis of the decision to which he
himself had subscribed.
In the course of his judgment, Judge
Butter said:
Thus, the case of South
Northamptonshire District Council v Power and others referred to are
clearly binding upon me but the door has been left just sufficiently far open
for a court to be able to decide that coresidence with a tenant who was a
secure tenant of other council property for part of the relevant time qualifies
within the meaning of section 87. The clear effect of the authorities is,
however, that residence connotes a connection with the particular property and
I am not persuaded that a court of first instance should depart from that
interpretation . . .
The reasoning which I have adopted has
taken precisely the same course as that adopted by the learned judge. I would
add only that it is no more possible for this court, when faced with a decision
which is binding on it, not to follow that decision that it is for a court of
first instance.
I therefore conclude that the appeal must
be dismissed.
Agreeing, STUART-SMITH LJ said:
But for the decision in this court in South Northamptonshire District
Council v Power, in my judgment there would be much force in Miss
Williams’ submissions. She submits that there is no warrant for implying into
section 87(b) the words ‘at the dwelling-house’ after the words ‘has
resided with the tenant’. She submits that it was sufficient to deal with the
case of Power and reach the same conclusion in that case on the basis
that the tenant in question had not been a tenant under a secure tenancy during
the relevant period. She submits, correctly, as it seems to me, that after the
word ‘tenant’ there must be implied into section 87(b) the words ‘tenant
under a secure tenancy’, so that the subsection would read: ‘He is another
member of the tenant’s (under a secure tenancy) family and has resided with
such tenant throughout the period of twelve months’. And she submits that that
would have been sufficient to decide the Power case in favour of the local
authority.
She has also submitted with force that
the Rent Act cases of Edmunds v Jones and Collier v Stoneman,
to which Nourse LJ has referred, were concerned with the question of the
special occupation of the relevant premises rather than the duration of
particular residence with a particular tenant — in other words, it was
necessary for the successor, in order to become a successor, to have resided in
the whole premises rather than in part of them — and that those cases did not
deal with the point at issue in this case.
There is some force in that submission,
but in my judgment the basis of the decision in the South Northamptonshire
v Power case is wider than that, and it is plain, as it seems to me,
that the court did not deal with the matter on that restricted basis. At p
1439D Kerr LJ says:
Those are the cases cited in Megarry,
The Rent Acts, 10th ed, pp 213-214, in the passage to which I have referred.
They are also summarised at p 212 under the heading: ”Residing with’ (a) meaning.’ They are the leading cases in that context.
Mr Hunter is therefore entitled to say, as he does, that in relation to the
Rent Acts the construction for which the local authority here contends has
been settled and accepted for at least three decades. It is perfectly true, as
Mr Jones points out, that the contrary argument on which he relies in this case
was not raised in those cases, and perhaps could not have been raised. But
since the present legislation is based on the Rent Acts, and I think
everybody’s understanding has always been that the connection which is required
to establish a succession is a double one, both a family one and a residential
one in the premises in question to which the succession is claimed, I have no
doubt that the Housing Act 1980 should be construed in the same sense.
Again, the passage to which Nourse LJ has
already referred at p 1441D in the judgment of Woolf LJ.
Miss Williams has drawn our attention to
the passage at the end of Woolf LJ’s judgment. At G he says:
I would also adopt the same approach to
section 30 of the Housing Act 1980, dealing with lettings by a local authority.
The provisions of section 30(2)(b) must be read in a way which requires the
period of 12 months’ residence ending with the death of the tenant, to be the
period during which the tenant was a secure tenant of the local authority.
But the learned judge does not, in my
judgment, base his judgment on that ground alone. If he had done so, there
would be much force in Miss Williams’ submissions that the case could be
distinguished. I, too, have some difficulty in following the reservation made
by Woolf LJ in the passage which follows. It seems to me that, in that case, Mr
Hunter, who appeared on behalf of the local authority, was making two
submissions. The wider submission was accepted by the court, namely that there
had to be residence in the premises in question for the relevant period and
also as a fall-back or alternative submission a more restricted one, namely
that it was sufficient if the tenant had been a secure tenant of the local
authority, albeit not in the premises in question. Woolf LJ adopts both, but
the wider proposition clearly embraced the narrower one, and, as it seems to
me, both members of the court based their judgments on the wider proposition.
For those reasons I find it impossible to
distinguish that case, and I, too, would dismiss the appeal.
The appeal was dismissed; no order for
costs save legal aid taxation of defendant’s costs; application for leave to
appeal to the House of Lords refused.
