This was a failed succession case where an article 8 proportionality defence was, at least in part successful. Our thanks to Legal Action ‘Recent Developments in Housing Law’ January 2013 for bringing it to our attention.
Affinity Sutton Homes Ltd v Cooper. Bromley County Court 17 October 2012
Mr Cooper senior was a secure tenant of Bromley LBC. Following a large scale transfer of Bromley’ stock to Affinity. Mr Cooper senior became an assured tenant. There was statutory right for succession by anyone other than a spouse. However, the tenancy agreement provided for a contractual succession for any family member residing with the tenant in the 12 months prior to the tenant’s death. The clause stated that:
all claims to succeed to the tenancy must be made… in writing within six months of the death of the tenant.
Mr Cooper senior died in March 2009. His son, Colin, who had lived with him for 37 years, remained in the property.
Colin Cooper did not make a written application to succeed within 6 months of Mr Cooper senior’s death. However, Affinity were aware during that 6 month period that Colin Cooper wanted to succeed. Affinity did not ask him to provide a written application, but, after the 6 months, served a notice to quit and began possession proceedings. Colin Cooper was sectioned under the Mental Health Act 1983 in October 2009.
On resumption and hearing of the possession claim, District Judge Brett dismissed the claim.
Firstly, Affinity had waived its right to insist upon written notice.
Secondly, the Claimant was held to be a public authority. And then
…apart from a technical omission (failure to serve written notice) [he] would have had an incontrovertible right to a tenancy… and because of this it would be disproportionate to deny him the right to continue to reside in a home where he has been for 37 years.
There was therefore a disproportionate breach of Article 8 in the claim.
Comment
This is an interesting ‘failed successor’ case. One wonders if it might have gone otherwise if Affinity hadn’t been aware of Colin Collins desire to succeed, to the extend that they could be found to have waived the right to written notice.
But the other question is what is Colin Collins’ tenancy status now? If there wasn’t that finding of the waiving of written notice, which presumably means that he had succeeded to the assured tenancy under contract, but just the Article 8 decision, then the notice to quit would have been valid in law. While eviction would be disproportionate, on what basis or status would he continue to occupy the property?
Although not applicable in Mr Collins case – through that finding of waiver – are we re-inventing the tolerated trespasser?
Not too surprising perhaps if Affinity had waived the right to insist upon a written notice but I don’t know the precise basis upon which that finding was made. He would be a trespasser if the notice to quit was not “struck down” but I suspect that Affinity could be estopped from treating him as anything other than an assured tenant: Daejan Properties Ltd-v-Mahoney [1996] 28 HLR 498 @ 506-7 per Lord Bingham.
It seems to me that Colin Cooper became the Assured Tenant on the death of his father. When there is an LSVT of stock from Council to Housing Association, the tenancies cease to be secure, because the the landlord has changed and the landlord condition under the 1985 Housing Act is no longer met.
The tenancies are Assured, meaning that the statutory right of succession is limited to spouse only. Everything then depends on what has been included in the new Assured Tenancy agreement. Affinity included contractual right of succession to any family member, subject to residential qualification, which criteria Colin Copper seems to have met. Their clause requiring Colin Cooper to ‘apply’ for succession seems to me meaningless, and open to legal challenge, as the contractual right here is Mr Cooper Senior’s right to pass the tenancy to a family member.
There’s either a Succession right, or there is not. It seems at least to me that there is a clear Succession right here, and the tenancy passsed to Colin Cooper on his father’s death. Eviction would certainly be disproportionate, but surely there is no need for reference to Article 8 here?
I think the son Colin Cooper has succeeded to the assured tenancy of his father. I also think that Affinity Sutton (in common with many other LSVT associations) are increasingly trying to renegade on the promises made in ‘offer documents’ to former council tenants and to the generous additional contractual succession rights. Why might this be so?
I further find it worrying that a registered provider would behave in such a reprehensible manner considering Colin Cooper’s obvious vulnerability and age and length of residence in his father’s home which it seems they were well aware of! The question is what (if anything) a ‘light touch’ regulator – the HCA – will do? Being made homeless with his apparent vulnerability surely constitutes ‘serious detriment’ or will Affinity Sutton’s tenant scrutiny panel ask questions?
Richard,
I’m afraid that whether you think Mr Copper succeeded is not really determinative. That was up to the Court.
It was a contractual term, not a statutory provision, so no succession by operation of law. The issue was whether the contractual term had been complied with or, if not, whether that failure was sufficient to make it proportionate for Affinity to evict. In these circumstances, the answer was no. It was because, at least in part, Affinity had behaved badly in not asking Mr Cooper to make a written request when they knew he wished to succeed under the tenancy agreement, then seeking to rely on the lack of written request.
Whether there is a general move to try to avoid the effects of contractual succession terms by Housing Associations holding stock transfers, I couldn’t say. I don’t know if there is evidence that this is so. If you have proper evidence, do let us know.