A quick note on a recent Court of Appeal decision: Northumberland & Durham Property Trust Ltd v Ouaha.

From 1/8/1980 until his death on 19/11/2010, Mr Al-Faisal held a protected Rent Act tenancy of Flat 15, 1 Royal Avenue House, London, SW3. In 1987, Ms Al-Faisal married the Appellant, Ms Ouaha, in an Islamic marriage ceremony in London and the couple had two children in 1991 and 1994. Importantly for the purposes of this case, there was no civil ceremony.

The parties separated in either 2002 or 2003 but continued living under the same roof. After Mr Al-Faisal’s death, the Respondent landlord commenced possession proceedings and HHJ Baucher in Central London County Court made a possession order on 7/11/12. The judge held that Ms O, as a potential successor, failed to satisfy paragraph 2 of Schedule 1 to the 1977 Act:

Paragraph 2 below shall have effect, subject to section 2(3) of this Act, for the purpose of determining who is the statutory tenant of a dwelling-house by succession after the death of the person (in this Part of this Schedule referred to as “the original tenant”) who, immediately before his death, was a protected tenant of the dwelling-house or the statutory tenant of it by virtue of his previous protected tenancy.

(1) The surviving spouse or surviving civil partner (if any) of the original tenant, if residing in the dwelling-house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling-house as his or her residence.

(2) For the purposes of this paragraph

(a) a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant and

(b) a person who was living with the original tenant as if they were civil partners shall be treated as the civil partner of the original tenant.

(3) If, immediately after the death of the original tenant, there is, by virtue of sub-paragraph (2) above, more than one person who fulfills the conditions in sub-paragraph (1) above, such one of them as may be decided by agreement or, in default of agreement, by the county court shall for the purposes of this paragraph be treated as according to whether that one of them is of the opposite sex to or as the same sex as the original tenant the surviving spouse or the surviving civil partner.

The question for the Court was whether Ms O could be treated as a ‘surviving spouse’ for the purposes of para 2(1). Vos LJ held (para 19) that the term ‘surviving spouse’ necessarily involved a greater degree of formality than the wording used in para 2(2)(a) (‘living together as husband or wife’) and that it required that the party ‘became legally the wife or husband in the country in which the ceremony took place’ (para.22).

As Ms O did not meet this requirement, she could not benefit from para. 2(1) and she therefore had no right to succeed to the tenancy. The Court also held for good measure that there was no discrimination issue. There was never any impediment to Ms O formalising her marriage to Mr Al-Faisal and of course, para.2(2) is intended to accommodate those who have never had a valid marriage ceremony, whether on religious grounds or otherwise.

The Appeal was therefore dismissed.