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?