The tenant is dead, long live the tenant

Our attention was drawn to a decision in the Medway County Court, presumably because it considered a proportionality defence. I’m not sure there’s much to see there — one of the team said that he was not “remotely excited about it”.

But it caught my eye. To be fair, one cannot always tell from a short judgment of this kind exactly what happened, but it gives the impression that landlord and tenant law was, at best, misunderstood. So it seemed like a golden opportunity to set the record straight.

The defendant’s father and mother had lived in the property under an assured tenancy. Sadly, the father died. The mother succeeded under s.17 of the Housing Act 1988. Later on her son, the defendant, came to live with her and look after her. The mother died. The landlord eventually decided that the defendant would not be allowed to carry on living in the property and served a notice to quit which duly expired. They claimed possession on the basis that the son was a trespasser.

But why? Assured tenancies are not magic. They have some magical properties given to them by the Housing Act 1988 but underneath they are still perfectly normal tenancies which means they are an estate in land capable of being inherited.

This means that when the defendant’s mother died, her tenancy would pass under her will or intestacy. If the mother had not been a successor, the magic of s17 might have come in to play, but she was so it did not. From the facts of the case it seems overwhelmingly likely that the son was her heir. He would then inherit the tenancy and become the tenant.

As an aside there are some subtleties here which I am not about to delve in to, such as the nature of a heir’s rights under an intestacy and the role of the Public Trustee. Readers will be familiar with the and all the usual rules about giving notice after a tenant has died.

It seems likely that the defendant was a tenant of the property and, since he lived there, almost certainly an assured tenant. You cannot end an assured tenancy by giving notice to quit. It may be that the district judge inquired into this possibility and the matter was dealt with but not mentioned in the judgment, but it really ought to have been.

The right way to evict an heir in these circumstances is of course to use Ground 7 of Schedule 2.

Posted in assured-tenancy, Housing law - All, Licences and occupiers, Possession, Succession and tagged , , .

23 Comments

  1. Isn’t it the fact that the PR was not resident at the property at the date of the NTQ? By the time he moved in there was no tenancy.

  2. Or at least it was not his only or principal home – he surrendered another tenancy which would presumably have been his principal home until then.

    • As you say, there’s a possibility that the court might, if it had considered the point, have found that he did not occupy as his principal home at the relevant time. As I am sure you know there’s a fair amount of case law about what counts as principal – on the facts as we are told them he may or may not have satisfied s. Housing Act 1988.

      We aren’t told when the surrender took place – “in May” is all we get. One suspects that, prior to surrender, he must have moved some or all of his possessions out. How much that was, and to what extent, will all have been factors in deciding whether it was his principal home.

      The fact that he asked to stay there is a reasonably strong suggestion that he considered it his home and that might have been decisive. Rather chancy for the landlords to just assume they’d succeed on this point.

  3. Hi Francis
    Puting asside the issue of whether the assured protection had fallen away after the expiry of the NTQ, how would he inherit the tenancy if there was no provision in her will for him to do so? There’s nothing in the judgement indicating there was nor any mention of any administration if she was intestate? Does the estate in land automatically devolve under the intestacy rules (in this case, to the son), regardless of whether administration has happened?

    • If she died intestate, the legal estate would vest in the Public Trustee. Assuming the son is the only issue, he would take beneficially under the statutory trust in s46(1)(ii) of the Administration of Estates Act 1925.

      I don’t recall any authority as to whether he would then count as a “tenant” under s45 of the Housing Act 1988 (as deriving title from the tenant). Beneficial tenants are as good as tenants I suggest.

      I assume that is why some statutes are careful to exclude such individuals eg paragraph 12, part II, schedule 3 of the Agricultural Holdings Act 1986.

      The complexities of this point are why I said I wasn’t going to talk about it in the post.

  4. I have just read Frnacis’ interesting blog on the Amicus Horizon v Hutchinsin case and have to say i cannot understand what the problem is. There was no further statutory succession available and the tenancy would have passed upon the mother’s death to the Public Trustee in the absence of any will or letters of administration/grant of representation. A notice to quit was served upon the public trustee in the normal manner and the common law tenancy was thus terminated – hence the Article 8 argument. In short, no misunderstanding at all of alndlord and tenant law.

    • With respect, I do not believe the Housing Act 1988 operates in that way.

      Assuming (as we are) intestate succession with no letters of administration (clearly there are various different alternative scenarios, but this seems the most likely) then it seems to me that the statutory trusts take effect on death and the Public Trustee would hold the tenancy on trust for the defendant.

      It seems tolerably clear that “tenancy” includes an equitable tenancy – it certainly includes an agreement for a tenancy (see s.45), so the defendant would be the “tenant” of the tenancy. If they then satisfied s.1 of the Housing Act 1988, the tenancy would be assured.

      It seems to me that must be the legislators intent behind ground 7 and the legislative scheme of the 1988 Act.

      I would be happy to hear of authority to the contrary.

  5. For authority to the contrary see:
    Fred Long & Sons v Burgess [1950] 1 KB 115
    Smith v Mather [1948] 2 KB 212

    • I disagree.

      Fred Long & Sons v Burgess considered the question of the “relation back” whereby once letters of administration are taken out the administrator is deemed to have held title to the estate since the date of death. The Court of Appeal held that the doctrine of “relation back” did not save a tenancy which had validly been terminated in the mean time.

      Under the Rent Restriction Acts the way in which security of tenure operated was quite different from the Housing Act 1988. In particular the statutory tenancy created to give security of tenure was a personal, non-inheritable, right. The Housing Act 1988 does not work in that way. An assured tenancy is a tenancy and, even if a statutory tenancy has been created, it is still a tenancy, not a personal right.

      So, there is no need for the defendant to rely on any notion of relation back. If he was the “tenant” at the time of death and satisfied s1, then the tenancy was, so long as he satisfied s1, an assured tenancy and it could not lawfully be terminated by notice to quit. No need to rely on relation back which has no relevance.

      I don’t see how Smith v Mather applies but it was overruled by the House of Lords in Moodie v Hosegood [1952] AC 61 anyway, so I doubt it has anything useful to tell us.

  6. Although the District Judge did not mention Ground 7 of Schedule 2 in the judgment, he did say that it was accepted by the defendant’s solicitor that the correct form of notice was served on the defendant (which would have been a notice seeking possession under Ground 7).
    A possession order can be made under Ground 7 without this being explicitly stated.

    • Paragraph 4 of the judgment reads: “On 5 April 2011 the Claimant served a notice to quit at the Property which expired on 9 May 2011. This brought Mrs Betty Hutchinson’s contractual tenancy to an end.”

      There is no way to reconcile that with the service of a notice under s8 giving Ground 7 as a ground for possession – not least because the service and expiry of a s.8 notice does not end the tenancy.

      It is also good practice to record that a possession order has been made under a mandatory ground. I would expect a reserved judgment to say so.

      As an aside: one of the reasons for recording that an order has been made under a mandatory ground is so that a future judge in (say) proceedings for the setting aside of a warrant is aware that s89(2) of the Housing Act 1980 applies. That would restrict any order to 42 days. The judge made a 56 day order. So something very odd is going on.

  7. I see that Francis. You are quite right of course. Something very odd is going on. I see under section 89(1) possession may be postponed for fourteen days from the making of the order, and then it is envisaged that in a case of exceptional hardship possession can be postponed until 6 weeks after the making of the order; possiblly this was taken to mean that another order could be postponing the date for possession by six weeks from the date for possession already set by the first order, making a total of eight weeks (56 days).

    • Maybe we are missing something, but s89(1) is extremely clear: you cannot extend beyond that 6 weeks by subsequent orders such as further stays or variations of the order. The court can stay pending appeal, but that doesn’t apply in this case.

  8. I see also in paragraph 7 of the judgment it is stated that the defendant’s solicitor acknowedged that “correct notices” had been served on the defendant, so there must surely have been a notice under section 8 of the Housing Act 1988 referring to ground 7, as well as the notice to quit, terminating the contractual tenancy.

    • Surely the most that can be said is that [7] may refer to a notice relying on Ground 7. We can’t be sure, because the judgment doesn’t say so. I’m not sure how you would square that with the final sentence of [1]. It might be that the “notices” included service on the Public Trustee, as in Andy Lane’s comment, but again, we don’t know, because the judgment doesn’t say. Equally, it is difficult to reconcile that with the concession that correct notices had been served on the Defendant.

    • That’s reading a lot into the judgment. It also contradicts what is said in para. 5, namely the basis on which the claim was brought.

  9. If the son inherits a tenancy, why does he become an assuered tenant as opposed to assuered shorthold? I would have thought he is an assuered shorthold tenant in these circumstances

    • Assuming that the son inherits his mother’s tenancy, then if there are reasons why that tenancy was a non-shorthold, they are likely to continue to be the case.

      For example, if the mother’s tenancy was excluded from being a shorthold by landlord’s notice under paragraph 1 of Schedule 2A (which is a fairly usual way to ensure non-shorthold tenancies), then that fact will continue to be true of the son’s tenancy.

    • Before the point in time the Public Trustee administers the estate and the “assured tenancy” is transferred to the son (i.e, the point in time the Public Trustee no longer holds the “assured tenancy” on trust for the tenant) doesn’t the son’s security arise from his status as an “equitable tenant” and and as a consequence an assured shorthold tenant?

    • Well, the way in which equitable tenancies have been used as a device to allow children to be “tenants” has always struck me as rather forced. So it may not bear too much examination.

      I’d suggest that the tenancy is the same, its just that the son has a different interest (a beneficial one) in that tenancy, but still on any proper reading of the act counts as a “tenant” under its extended meaning in s.45. There isn’t a new tenancy.

  10. If the mother died intestate the tenancy would devolve on the Public Trustee (s9 Administration of Estates Act 1925 as amended). The tenancy remains vested in the PT until another administrator has been appointed or the tenancy has been vested in the beneficiary by way of an assent (s 36 AEA).

    Service on the PT is effected by sending a notice to “The Personal Representiatives of [the deceased]” to the last known address of the deceased AND a copy to the PT at his office in London(s 18 Law of Property (Misc Provis) Act 1994).

    I think you are reading a lot into the admission by the Defendant’s solicitors that the correct form of notice was served. I suspect that the PT was not involved, or I would have expected the District Judge to say so.

    However, IF the PT had been served then I can’t see what defence D would have in the end. The NTQ would take effect as it was no longer an assured tenancy as the mother was no longer living there, and at the time the NTQ took effect D had not yet had the tenancy vested in him.

    SO L would win anyway, in my view. It must be said, though, that the Ground 7 procedure is a lot more straightforward.

    • See my detailed discussion _passim_ above.

      You don’t have to have legal title to a tenancy to be an assured tenant. My point was that D could well have had – and the sketch of the case suggests this – a beneficial interest in the legal tenancy (vested in the Public Trustee) which would confer on D the status of “tenant” within the meaning of s45 of the Housing Act 1988.

      It is just this sort of situation that ground 7 was designed to meet.

    • The cases on equitable tenants to minors are somewhat different. There the trustee is the Landlord, who then would be in breach of trust in serving a notice to quit against the interests of the beneficiary. I’m not sure they decided that an equitable adult tenant can have an assured tenancy, if the trustee is non-resident.

      I wholly agree about Ground 7, though.

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