Housing Act 1985, section 87 — Secure tenancy — Succession on tenant’s death — Brother residing with tenant in different premises until his death — Meaning of “resided with” — Relevant 12-month period — Whether residence sufficient to continue secure tenancy — Whether local authority entitled to order for possession — Court of Appeal upholding order for possession — House of Lords allowing appeal against that decision
The appellant, T, lived with his brother for the 12-month period ending with his brother’s death at two different addresses. For about two and a half years before his brother’s death, T lived continuously at 29 Juniper Court, Morris Road, London E15. During the last 10 days before the brother’s death, he lived at 336 Stocksfield Road, Walthamstow, London E17. The landlords of both houses were Waltham Forest London Borough Council, the present present respondents. The brother held a secure tenancy of both premises. The brother died in April 1988, 10 days after his secure tenancy at Juniper Court had been replaced by his tenancy at Stocksfield Road, Walthamstow. An issue arose as to whether T qualified to succeed to that secure tenancy on the death of his brother. Section 87 of the Housing Act 1985 provided that a person was qualified to succeed the tenant under a secure tenancy if he occupied the dwelling-house as his only or principal home at the time of the tenant’s death, he was another member of the tenant’s family and he had resided with the tenant throughout the period of 12 months ending with the tenant’s death. The council argued that for section 87 to apply the secure tenant and his successor should have resided throughout the 12-month period in the premises of which the tenant was the secure tenant at the date of his death. T argued that it was enough if throughout the relevant period the successor had resided with the tenant at different premises at all of which the tenant had been the secure tenant. The Court of Appeal upheld the decision of the county court that section 87 did not apply in this case: see [1991] 2 EGLR 35. The court held that section 87 did not apply where the brother had resided with the secure tenant throughout the relevant period but not in the same premises: South Northamptonshire District Council v Power [1987] 1 WLR 1433 applied. T then appealed to the House of Lords.
Held The appeal was allowed.
1. Section 87 did not stipulate that the successor must have resided at a particular house for 12 months but only that he should have resided with the deceased tenant for that period. The effect of section 87 was to ensure that a qualified member of the tenant’s family who had made his home with the tenant should not lose his home when the tenant died but should succeed to that home and to the secure tenancy which protected both the tenant and the successor while the tenant was alive and which should continue to protect the successor after the death of the tenant. In order to qualify, a successor must have resided with the tenant during the period of 12 months ending with the tenant’s death. That construction ensured that section 87 could not be exploited, that there would be no difficulty in identifying a genuine successor and that only bona fide claims to have been residing with the tenant should succeed. That protection for the local authority did not require the residence to have taken place for the whole 12 months in the house to which succession was claimed. The section required residence with the tenant only for the period of 12 months and there was no justification for implying any other requirement.
2. When a tenant and a potential successor moved from one council house to another, the tenant did not lose the protection of a secure tenancy and there was no good reason why the potential successor should lose the protection which he had obtained or was in the course of obtaining under section 87. When a tenant who was not already a council tenant applied for a council house, the local authority, before granting a secure tenancy would find out whether the house would be occupied by the tenant alone or by the tenant together with a member of his family. The local authority would know, if they let the house to the tenant, whether it would also be occupied by a potential successor who had made his home with the tenant. If the tenant’s death was untimely, ie within one year of the date of the letting, there was no reason why the potential successor should lose his home if he had in fact resided with the tenant for 12 months.
3. In the present case the local authority had been unable to suggest why T should lose his home as well as his brother by reason of the death of his brother. In the absence of express language, section 87 should not be construed in a manner which could only, as in the present case, produce unwelcome and unjustifiable distress and hardship in the event of an untimely death.
4. Section 87 required that the successor should occupy the council house as his home at the death of the tenant and should have resided with the tenant during “the period of 12 months ending with the tenant’s death”. It did not matter whether the successor and the tenant resided together in one or more houses or whether the residences were all council houses provided that they resided together in a council house at the moment of death and provided that the successor and the tenant resided together during the period of 12 months prior to the death of the tenant. The Power case, which the Court of Appeal had applied in the present case, had been wrongly decided.
Stephen Sedley QC and Heather Williams (instructed by Cartwright Cunningham) appeared for the appellant, T; John Perry QC and Kevin Metzger (instructed by the solicitor to Waltham Forest London Borough Council) appeared for the council.
