The assignment that wasn’t.

Haringey LBC v Theobald. Clerkenwell and Shoreditch County Court 7 April 2011

Hat tip to September’s Legal Action ‘Recent Developments in Housing Law’ for this County Court case, and Daniel Fitzpatrick at Hodge Jones & Allen. Not a very significant case but a good illustration of the unintended consequences of the ad hoc arrangements sometimes made by Local Authority housing offices.

Mr Theobald’s father was given a tenancy of a 4 bedroom property by Haringey in 1962. In 1993, the father, suffering from dementia, moved permanently into a care home. Mr T and his brother applied to succeed to what was now a secure tenancy.

Haringey purported to transfer the tenancy to Mr T’s brother in November 1993, in the process referring this being both a succession and an assignment of the tenancy.

In 2009, Mr T’s brother died. Haringey served notice to quit on the public trustee and the property, then bought possession proceedings. Haringey argued Mr T had no rights of occupation.

At trial, the District Judge accepted that Mr T’s father’s mental health was such that before moving to the care home he had difficulty in recognising people. The issue of the tenancy was not discussed as the father would not have understood it. There was therefore no legal assignment.

An equitable assignment would have required evidence of agreement on the part of the assignor, with acts of part performance. For the same reasons that there was no legal assignment, there was no equitable assignment. There was no evidence of any agreement.

There could not have been a succession in 1993 as the father was still alive at the time that the brother ‘took over’ the tenancy. The father had lost security of tenure at the time he went into the residential home.

The brother’s tenancy from November 1993 was therefore a new secure tenancy granted by Haringey, whatever Haringey thought they were doing. Mr T was entitled to succeed to this tenancy under Housing Act 1985 sections 87 and 89 (and presumably had done so on his brother’s death). The possession claim failed.

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, Possession, secure-tenancy, Succession and tagged .

3 Comments

  1. Query:

    When the father lost security of tenure at the time he went into the residential home; how could the brother’s have a secure tenancy from November 1993 granted by Harringey?

    When the father lost securty he would have had a contractual tenancy which should have been determined by NTQ. Because the contractual tenancy wasn’t so determined then it could not have been in Harringey’s power to grant a tenancy.

    Is this right?

    • The way I see it, if a Council tenant abandons the property and loses security of tenure, one only need serve Notice to Quit if someone is then in occupation. If the Council’s sure that nobody’s there surely they can just retake possession unilaterally (subject always to the Protection from Eviction Act) as the tenancy would have been impliedly surrendered?

  2. I agree with Hassan. You cannot have concurrent tenancies of the same estate. Dad’s common law tenancy would have continued unless determined by Notice to Quit. Abandonment doesn’t arise as he left his sons in occupation as his licensees, albeit this result does seem harsh given Haringey’s treatment of the brother as a tenant

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