Survivorship and succession

Solihull Metropolitan Borough Council v Hickin [2012] UKSC 39

We reported this case in the Court of Appeal here. Briefly Ms Hickin was the daughter of joint tenants of Solihull and had lived in the house since she was born. The father moved out some 9 years before. On the death of the mother, Ms Hickin sought to succeed to the tenancy under s.89 Housing Act 1985. Solihull served notice to quit on the basis that the father was now the sole tenant, by survivorship, but did not fulfil the residence requirement, so the tenancy was terminable by notice to quit and brought possession proceedings.

In the Court of Appeal, Ms H argued, unsuccessfully, that s.89 overrode common law survivorship. The case then went to the Supreme Court, which was divided, finding against Ms H 3:2

Ms H’s argument, broadly as in the Court of Appeal, was that sections 87-89 Housing Act 1985 formed a complete code within themselves and as such, overrode the common law provisions on survivorship.

Lord Sumption, Lord Hope and Lord Walker agreeing, found that s.87-91 Housing Act 1985 did not wholly displace the common law. They dealt only with dispositions inter vivos or on death. They did not deal with subsisting contractual and proprietary relations between landlord and tenant. Further, the statute operated by reference to existing (common law) provisions on the legal characteristics of estates in land. In addition, “in a number of cases the Act does not modify the general law governing the transmission of tenancies, but only the statutory security of tenure available where the tenancy has been transferred.”

In Tennant v Hutton (Court of Appeal, 9 July 1996, unreported), Millett LJ characterised survivorship in joint tenancies in these terms:

The essence of a joint tenancy is that the property is vested in all or both of the joint tenants together. In contemplation of law there is only one tenant, though the tenant consists of two or more persons and the survivors and survivor of them. On the death of any one of them, the property becomes vested in survivors or survivor. There is no true transmission of title. The property remains vested after the death in the same tenant as it did before, though the number of persons who compose the tenant is reduced by one.

Was this result excluded by the Housing Act 1985? In Tennant v Hutton a similar question had arisen in respect of Schedule 1 Part 1 of the Rent Act 1977, where a husband and wife held a joint tenancy, with the daughter living with them. On the death of the wife, the question was who succeeded to the tenancy, the husband or the daughter. The Court of Appeal held that there was no succession because the tenancy subsisted in the husband. The daughter “cannot claim a statutory tenancy by succession to her mother because immediately before her death her mother was not the protected tenant of the house. She was merely one of the two persons who constituted the tenant”. Millett LJ said:

Parliament’s intention is clear and accords with a literal application of the statute. The family of a statutory tenant is to be protected from eviction when the tenancy comes to an end on the death of the tenant. When the tenancy is vested in joint tenants, the tenancy does not come to an end on the death of the first of them to die and the survivor needs no protection. There is neither need nor room for the application of the schedule and the statutory rules of succession until the death of the survivor. Until after Mrs Tennant’s death, there was no single tenant of the house on whose death the statutory provisions could or needed to apply.

[N.B. the daughter was unrepresented in Tennant.]

As in Tennant, Lord Sumption declined to read the words of s.89(1) ‘a secure tenant dies’ as referring to anything other than a sole tenant.

If the tenancy is a joint tenancy, the tenant has not died if there remains at least one living joint tenant in whom all the proprietary and contractual rights attaching to the tenancy subsist. Section 89 of the Housing Act 1985 is a mandatory provision which is wholly concerned with the transmission of the tenancy to a person other than the previous tenant, on account of the latter’s death. This makes sense only on the assumption that there no longer is a previous tenant. Where there is a surviving joint tenant, the whole statutory basis for disposing of the succession to the tenancy is absent. It is no answer to this to say that the purpose of the statute is to transfer the tenancy to members of the tenant’s family living in the house. That simply begs the question. It is not necessary to provide for the transmission of a tenancy on death unless there is, so to speak, a vacancy. If the tenancy subsists in the surviving joint tenant, there is none. It is obvious that section 89 implicitly excludes the possibility of the transmission of the tenancy upon death in a manner inconsistent with its terms. But the recognition of the right of the survivor under a joint tenancy is not inconsistent with the provisions of section 89 relating to the transmission of tenancies, because the survivor’s right is not a matter of transmission. The survivor has the same rights as he always did.

The appellant’s argument around s.89(1) was a false distinction between ‘the’ tenant and ‘a’ tenant. The disctinction is false becasue it concerns the tenancy, not the partial interest of any individual in the tenancy. As s.81 and 88(1)(b) envisaged joint tenants, the draftsman would have been clear if the death of one of joint tenants was intended at s.89.

On s.88(1)(b), which reads:

88. Cases where the tenant is a successor
(1) The tenant is himself a successor if
(a) the tenancy vested in him by virtue of section 89 (succession to a periodic tenancy), or
(b) he was a joint tenant and has become the sole tenant, [...]

this means that Mr H was deemed to be a successor, for all that there was no transmission of the tenancy at common law, just a continuation of it. However, this does not mean that Mr H ceased to be the tenant.

On the contrary, section 88(1)(b) recognises that he became the sole tenant upon his wife’s death, something which could not have happened if the tenancy passed automatically to his daughter at that point. Nor does it follow that Mr Hickin’s rights as the deemed successor of his wife had to compete with the claim of his daughter to succeed her. All that follows from section 88(1)(b) is that since there was deemed to have been a succession on Mrs. Hickin’s death, there could not thereafter be another one.

Pace Lord Hope, s.88(1) “recognises that a person who was a joint tenant may become the sole tenant in the exercise of that right irrespective of where his only or principal home is.”

Sections 87 and 88 were there to ensure that the landlord was not kept too long out of the property, not to create new succession rights. While there was sympathy for Ms H’s position, this could not determine broader principles.

Lord Mance, with Lord Clarke agreeing, would have allowed the appeal. Tennant v Hutton, as Rent Act case was based in part on Mr Tennant’s continued occupation of the property. If he had left before his wife died, she would have continued as the ‘protected tenant’ for the purposes of Part 1 Schedule 1 Rent Act 1977. Lloyd v Sadler [1978] 1 QB 774 established that for statutory tenants, where on joint tenant leaves, the other becomes the sole statutory tenant. THis was taken as the protective purpose of the Rent Act

Ms H argued that the Housing Act 1985 should be interpreted in a similar way, such that while the late Mrs H’s occupation of the property preserved the secure status of the joint tenancy, she was the secure tenant for the purposes of s.89. Where Mr H was not entitled to succeed under s.89(3) as not occupying, Ms H was the successor with priority.

Lord Mance does not accept Ms H’s arguments in full (such a that a third party might override a joint tenant who remained in occupation (though not a partner/family member). However, Bassetlaw D. C. v Renshaw [1992] 1 All ER 925, as approved in Birmingham City Council v Walker [2007] UKHL 22, [2007] 2 AC 262 makes clear that s.88(1)(b) only considers a joint tenant as a successor (in a joint to sole tenancy) where the joint tenant remained in occupation and could satisfy the secure tenancy requirements. This would be the case, by virtue of s.88(1)(b) even if the ‘successor’ joint tenant didn’t otherwise fall within the definition of those who can succeed (partner, family member) in s.89.

But where 88(1)(b) deals with succession by a joint tenant, s.88(1)(a) refers to succession as provided for in s.89. Succession (joint to sole) by a joint tenant therefore falls outside s.89 and can only occur where the surviving tenant satisfies the secure tenant conditions.

Where a joint tenant who is in occupation and is a secure tenant dies, and the surviving joint tenant is not in occupation, the secure tenancy cannot continue in the surviving tenant and the surviving tenant cannot be a secure tenant. In this situation, nothing in the Act recognises or permits any right of survivorship which can oust the mandatory statutory provisions for succession contained in section 89, read with sections 87 and 88. Where a secure tenant dies, the language of section 89(1) and (2) vests the secure tenancy immediately on the death in any person qualified under the definitional sections 87 and 88. Here, it vested and continued in Miss Hickin the secure tenancy which until her mother’s death existed by virtue of her mother’s occupation. [para 47]

In response to Lord Sumption, Lord Mance raises a series of objections [49-55], in particular on the s.88(1)(b) point:

the suggestion (Lord Sumption’s paragraph 13) that “section 88(1)(b) recognises that [Mr Hickin] became the sole tenant” is not consistent with the case-law. Section 88(1)(b) postulates and is only concerned with situations in which the sole tenant “was a joint tenant under a secure tenancy and has become the sole tenant under a secure tenancy”: see the citations in paragraph 45 above, I cannot therefore agree with Lord Hope’s statement (paragraph 24) that section 88(1)(b) recognises that a person who was a joint tenant may become the sole tenant in the exercise of that right “irrespective of where his only or principal home is”. That is the common law rule, but section 88(1)(b) deals and deals only with situations where a secure joint tenancy becomes a secure tenancy in the hands of a surviving sole tenant. That situation can only arise where the surviving sole tenant is in occupation at the time when the death and survivorship occur. [para 50]

Comment
And there we are. A 3:2 division. It is perhaps not surprising.

There is a clear logic in interpreting the Housing Act, as Lord Mance does, as intended to provide a statutory amendment to common law tenancies so as to enable security of tenure to be transmitted to a qualified successor, “The philosophy of the Housing Act 1985 is that one statutory succession to a secure tenancy should be available between a tenant and a qualified successor, each in turn enjoying occupation as secure tenant”. However, that end can only be reached by interpreting ss.87-91 as effectively a closed system, such that if the common law position is not mentioned, it is excluded. On this logic as only succession (joint to sole) by a secure tenant is mentioned, there can be no other form of survivorship.

On the other hand, there is the (majority) view that unless the common law position is expressly ruled out, amended or over-ruled by statute, it persists, even where, as here, it results in an unwanted non-secure tenancy for the survivor and a would be successor who was to lose her home of 45 years.

My view, for what it is worth, is that this is an unfortunate lacuna in the Housing Act 1985, and one that does go against the purpose of the Act. However, I’m not sure that it is a statutory failing that can be made good by instead reading the Act as a closed system. Where the Act does not prescribe, the common law has to be taken to remain.

Posted in FLW case note, Housing law - All, secure-tenancy, Succession. RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

18 Comments

  1. stephen gibbs
    Posted 11/09/2012 at 12:50 am | link to comment

    Thank you, once again an exceptional and erudite piece of analysis of a particularly thorny part of the ’85 Act.
    And if I may say so, an issue close to me as was the case in a Five-year battle (successful) on this very part with Sefton MBC in the 90s, and one that led to me becoming a Legal Executive, working housing!

  2. Ken
    Posted 11/09/2012 at 12:52 pm | link to comment

    If the “closed system” approach is taken wouldn’t a further problem arise in a situation where the original joint tenancy is held by more than two people and one of them dies?

    Without the common-law right of survivorship and with no specific provision in the ’85 Act for anything other than “joint to sole” where would the remaining joint tenants stand?

  3. S
    Posted 11/09/2012 at 3:17 pm | link to comment

    The minority view, in my view at least, didn’t really accord with what the House of Lords said in Birmingham CC v Walker either.

    Security of tenure is a cloak around a common law tenancy. You can’t have a “secure” tenancy without a common law tenancy. That must surely mean that 85 Act’s purpose was not to displace the common law rules entirely; rather add to them.

    If that is right, you can’t inherit the security unless you have also inherited the common law tenancy. You can’t inherit the common law tenancy unless you satisfy the ordinary common law rules.

  4. Posted 11/09/2012 at 4:22 pm | link to comment

    Although I have a lot of sympathy for the daughter’s position, I found the majority view more persuasive. The common law subsists unless it is amended or overruled by statute. The indications that the well-known concepts of joint tenancy and survivorship have been displaced by a reference to “a” tenant rather than “the” tenant smacks rather of desperation than good interpretation of the statute and sound judgment.

    Maybe matters are different in Scotland. If they are to be changed here then it is perhaps better for parliament to do so, as they can weigh the other factors such as under-occupation and housing management, as well as inserting the protection to other joint tenant as mentioned in the judgments.

  5. Stephen Wood
    Posted 17/10/2013 at 10:54 pm | link to comment

    …this is very interesting – how much time passed between the Mother’s death and the Supreme Court’s decision?

    Also, in a case where there is (on the surface) no succession right, can a court force a social landlord to give the deceased tenant’s executor an extended period to remove personal effects from the property (taking into account grief/trauma, physical disability, remoteness, childcare responsibilities and so on)?

    • Posted 17/10/2013 at 11:25 pm | link to comment

      Dunno about time to the SC decision, but I’d guess at at least 3 years.

      And on your second question, no.

    • Posted 20/10/2013 at 9:46 pm | link to comment

      Just under 5 years – 8 August 2007 to 25 July 2012.

      • Stephen Wood
        Posted 20/10/2013 at 10:04 pm | link to comment

        …really? And Ms Hickin continued to live in the property during that time?

        And can a social landlord advertise a property to prospective tenants (via, for example, its bidding website) before being granted vacant possession?

        • Posted 20/10/2013 at 10:12 pm | link to comment

          Yes as a court case underway to determine her right to stay there, or not.

          And it would not be wise to advertise, as not certain when possession will be obtained. But it is not a case of being ‘granted’ vacant possession. If there is no successor, possession proceedings can be brought quickly, if required.

          • Stephen Wood
            Posted 20/10/2013 at 10:34 pm | link to comment

            thanks…and if a family member who did not have right of succession was registered to be housed by the local authority could they apply for the property if it were advertised?

            • Posted 20/10/2013 at 10:39 pm | link to comment

              Only through the usual allocation process. They would have no particular preference through being a family member. So it would depend on their priority, the size of property they could bid for and whether the housing association took allocations through the council list.

  6. Stephen Wood
    Posted 24/11/2013 at 10:38 am | link to comment

    …an update.

    As you pointed out above, I have no grounds for automatic succession – the local authority gave me some time to clear my Mother’s property but this has come to an end and I have been unable to finish doing so -I am largely limited to weekends, have to bring my three children with me and have become so depressed and anxious that I have been referred to a psychiatric unit.

    What can the LA (or rather their ALMO) do next?
    Can they just break in or do they have to serve an NTQ then go to court for possession?

    They have never given me any formal notice of ending the teneancy

    Can they just break in? Or d

    • Posted 24/11/2013 at 5:28 pm | link to comment

      Stephen, sorry this is heading into individual legal advice and we can’t give that via the blog, but it would usually mean possession proceedings.

  7. Stephen Wood
    Posted 24/11/2013 at 10:39 am | link to comment

    …sorry – last line above is a typo

  8. Stephen Wood
    Posted 24/11/2013 at 5:50 pm | link to comment

    …sorry Giles.

  9. Stephen Wood
    Posted 28/11/2013 at 6:32 pm | link to comment

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