Succeeding to a joint tenancy

Solihull Metropolitan Borough Council v Hickin [2010] EWCA Civ 868

Where there are two joint tenants of a secure tenancy, of whom one has left and no longer occupies the property, and the remaining tenant in occupation dies, can that tenant’s adult child succeed to the tenancy? Or does the tenancy become vested solely in the remaining, absent, tenant by way of survivorship in the form of a bare contractual tenancy?

In this Court of Appeal case, an ingenious argument was raised to suggest that the child could succeed, because the provisions of the Housing Act 1985 overrode the common law rule of survivorship. Ingenious, but unsuccessful.

Ms Hickin was the daughter of Mr & Mrs Hickin. Mr & Mrs H became joint secure tenants of a Solihull Council property in 1980. Mr H moved out in about 2001 when the marriage failed. MS H remained living in the property with Mrs H. Mrs H died in August 2007. Solihull served notice to quit and then brought possession proceedings (although it should be noted they did offer alternative accommodation).

At first instance, the Council were given a possession order. On appeal, the Circuit Judge accepted Ms H’s arguments and held that she was the secure tenant. Solihull appealed to the Court of Appeal.

Solihull’s argument was simple. Survivorship applied. Mr H was the sole tenant, although not a secure tenant as he did not fulfill the residence requirement. Accordingly his tenancy was terminable by notice. There was no basis for Ms H to succeed.

Ms H argued that s.89 Housing Act 1985 meant that a succession was possible. S.89 states:

(1)This section applies where a secure tenant dies and the tenancy is a periodic tenancy.
(2)Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules—
(a)the tenant’s spouse or civil partner is to be preferred to another member of the tenant’s family;
(b)of two or more other members of the tenant’s family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord.

Ms H argued that s.89(1) was engaged, as Mrs H was a secure periodic tenant who died. S.89(2) was engaged as Ms H was a person qualified to succeed the tenant, indeed the only one as she was living with Mrs H at the date of her death. Accordingly, the tenancy vested in Ms H under s.89(2) ‘by virtue of this section’. As the tenancy vested in Ms H under statute, Mr H was deprived of the benefit of a sole tenancy by operation of common law.

The Master of the Rolls in the sole judgment found that although this was a superficially attractive argument based on those two terms of s.89 alone, and would produce an attractive result in view of Ms H’s situation, one had to consider the broader statutory context of Housing Act 1985. One also had to consider whether the construction argued by Ms H resulted in a sensible outcome broadly considered.

In that latter connection, it seems to me that, while the interpretation put forward by Mr Nicol [for Ms H] produces a perfectly satisfactory result on the facts of the present case, it could produce a quite extraordinary result in other circumstances. Consider a case where two women, each of whom has a child, are granted a joint tenancy of a property in which both of them live together with their respective children. On the death of one of the women, Mr Nicol’s argument, as he accepts, would result in the tenancy vesting in her child, and the surviving secure tenant being divested of her interest under the tenancy, and without any right to stay in her home, in which, until the death of her co-tenant, she was a secure tenant. This seems to me to be a rather absurd, or at least capricious, result, amounting almost to a sort of reverse tontine, which is most unlikely to have been intended by the legislature. [para 12]

On the context of s.89, the doctrine of survivorship was consistent with the way Part IV of the Housing Act 1985 worked, as described by Lord Hoffman in Birmingham City Council v Walker [2007] UKHL 22. At para 5, discussing the Housing Act 1980 provisions consolidated into the 1985 Act, Lord Hoffman said:

The method adopted by the 1980 Act to deal with transmissions is different. It reflects the fact that a secure tenancy is different in nature from a statutory tenancy. Whereas the statutory tenancy is unassignable, not an estate in land but a mere “personal right of occupation” (see Lord Greene MR in Carter v SU Carburetter Co [1942] 2 KB 288, 291), a secure tenancy is an orthodox estate in land which, subject to specific restrictions in the 1980 Act, can be assigned, held in joint names, pass by survivorship and be disposed of by will on death. Thus, while a statutory tenancy can pass from one person to another only in very limited circumstances (such as the statutory transmission on death or by a court order on divorce) a secure tenancy can in principle pass in any way permissible at common law.

In the 1985 Act, s.87 is the governing provision. S.87 refers to a person being qualified to ‘succeed the tenant under a secure tenancy’ and ‘at the time of the tenant’s death’. The statute envisages a person who is the tenant. At the time of Mrs H’s death, only one of the people who comprised ‘the tenant’ had died.

Further, s.88(1) Housing Act 1985 specifically contemplates a joint tenancy becoming vested in one of two joint tenants, presumably by survivorship. This is in distinction to the position in Lloyd v Sadler [1978] 774 on the Rent Act 1968, which had no such express consideration, but even in that case, the argument that succession could overrule survivorship failed.

While the result may seem unfair on Ms H, had Mr H remained in occupation and thereby become sole secure tenant, Ms H would also have had no security on his death.

Ms H also argued that:

because section 79(3) provides that the secure tenancy regime applies to the licences as well as tenancies, the interpretation favoured by Miss Hickin should be preferred, because it produces a consistent result whether the joint interest granted is a licence or a tenancy. I am unimpressed with that argument. On one view, the effect of section 79(3) is to require the outcome in relation to a case involving a licence to be identical to that which it would be if the licence had been a tenancy, in which case this argument fails in limine. In the alternative, because many of the legal principles relating to licences (which are simply personal contracts) and tenancies (which are interests in land) are different, it is unsurprising if the incidence of the statutory provision sometimes produced different results when applied to licences from what they produced when applied to tenancies. [para 23]

Appeal allowed and possession order restored.

About Giles Peaker

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 +.
Posted in Housing law - All, secure-tenancy, Succession.

8 Comments

  1. It is to be noted that those representing the tenant do not appear to have made any claim that a possession order would involve a breach of to article 8 or 14 with 8, especially having regard to Paulic v Croatia, cosic v croatia, zehentner v Austria etc thro either gateway A or gateway B

    • There was an offer of alternative accommodation but Ms H wanted to stay in the property where she had lived for 20 years. Any human rights or public law challenge would , in my opinion, never have got off the ground. I presume this was why it wasn’t raised.

  2. Miss H is my client. Going to the Supreme Court for clarification? Three Two decision. I don’t think so. Lord Sumption gave the leading judgement.

    Lord Mance commented if the majority decision is the law then parliament may wish to look at it to bring it into accord with the Scottish law where Miss H would have succeeded. Lord Clark was of the same view.

    I will be interested to hear views next week but if part IV of the Act was not passed to protect someone like Miss H I’m a dutchman.

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