Bater and Bater v Greenwich London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Roch,Lord Justice Thorpe,Lord Lloyd of Berwick |
| Judgment Date | 22 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0722-15 |
| Docket Number | CCFMI 99/0247/2 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 1999 |
[1999] EWCA Civ J0722-15
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BROMLEY COUNTY COURT
(HER HONOUR JUDGE HALLON)
Royal Courts of Justice
Strand
London WC2
Lord Justice Roch
Lord Justice Thorpe
Lord Lloyd of Berwick
CCFMI 99/0247/2
And:
MISS F ZAMMIT (Instructed by Straker Holford & Co) appeared on behalf of the Appellant
MR I PEACOCK (Instructed by The Head of Legal Services, London Borough of Greenwich) appeared on behalf of the Respondent
This is an appeal from the decision of Her Honour Judge Hallon given on the 17th February 1999 deciding a preliminary issue, namely whether the act of Mrs Bater terminating a joint tenancy of the matrimonial home which brought to an end the right to buy the house from the respondent local authority which Mr & Mrs Bater had, was a disposition of property within the meaning of s. 37 of the Matrimonial Causes Act 1973 which the judge, exercising the power contained in that section, could set aside.
The facts can be briefly stated. Mr & Mrs Bater began to co-habit in 1985. They married in July 1991. They have two sons, a boy aged 12 and a boy aged 11. On the 17th June 1996 Mrs Bater became the secure tenant of the family home No 29, Briset Road, Eltham, a property owned by the London Borough of Greenwich. On the 21st August 1996 Mr & Mrs Bater claimed the right to buy the property. The local authority accepted that they had that right on the 1st October 1996. On the 13th November 1996 the local authority offered the property to Mr & Mrs Bater for £31,360 being the value of the property, £56,000 less a discount of £24,640. On the 27th November 1996 Mr & Mrs Bater accepted that offer. On the 16th December 1996 Mr & Mrs Bater became joint secure tenants of the property.
Unhappily the marriage ran into difficulties and on the 1st October 1997 the local authority changed the locks on the property at Mrs Bater's request. On the 21st October 1997 Mrs Bater commenced divorce proceedings. The local authority were advised of those proceedings by Mr Bater's solicitors on the 23rd February 1998.
On the 6th March 1998 Mrs Bater gave the local authority notice terminating the joint tenancy with effect from the 6th April 1998. The same day Mrs Bater was granted a tenancy of another property by a housing association. On the 24th March 1998 the decree absolute of divorce was granted followed two days later by Mrs Bater's application for ancillary relief.
On the 28th April 1998 the local authority wrote to Mr Bater saying he was an unlawful occupant of 29, Briset Road. On the 30th April 1998 the local authority began proceedings for possession of 29, Briset Road in the Woolwich County Court. The local authority's case was that Mrs Bater had terminated the tenancy with effect from the 6th April 1998 by the notice dated the 6th March 1998 having vacated the dwelling house leaving Mr Bater in occupation. The local authority had written to Mr Bater requiring vacant possession of the dwelling house on the 28th April 1998. Mr Bater remained in occupation of the dwelling house, having no right to do so.
On the 6th August 1998 the local authority gave notice to Mr & Mrs Bater under s. 140 of the Housing Act 1985 requiring them to complete the purchase of 29, Briset Road. That notice required them to complete the transaction within a period of 56 days. It informed them that if they failed to comply with that notice a further notice could be served requiring them to complete within a further period of 56 days and that if they failed to comply with that further notice, their notice claiming to exercise the right to buy should be deemed withdrawn at the end of that period. In fact the service of that notice was a mistake, the officers of the local authority who issued it being unaware of the notice terminating the joint tenancy which had taken effect on the 6th April 1998. Neither counsel for Mr Bater or counsel for the local authority seeks to take any point on the service of that notice and it can be disregarded for the purposes of this appeal.
On the 3rd of September 1998 Mr Bater made an application for ancillary relief and an application under s. 37 of the Matrimonial Causes Act 1973 for the avoidance of a disposition of property by Mrs Bater. On the 9th September 1998 HHJ Hallon made, by consent, a shared residence order in respect of the children. On the 23rd October 1998 the local authority served a notice on Mr Bater denying that he had a right to buy 29, Briset Road on the ground that he was not a secure tenant of that property. On the 14th December 1998 the judge directed that the possession proceedings brought by the local authority and Mr Bater's application under s. 37 of the Matrimonial Causes Act be listed together and that there should be a hearing to decide a preliminary issue, namely whether there had been a reviewable disposition of property by Mrs Bater within the meaning of s. 37 of that Act. On the 17th February 1999 the judge decided that Mrs Bater had not made a reviewable disposition of property by serving her notice which ended the joint tenancy of 29, Briset Road on the 6th April 1998. The judge decided the preliminary issue against Mr Bater on two grounds: first, that the right to buy was not property. Second, that in serving the local authority with the notice dated the 6th March 1998 Mrs Bater was not making "a disposition of property".
In my judgment, the conclusion reached by the judge on the second point was clearly correct in the light of the House of Lords decision in Newlon Housing Trust -v- Alsulaimen [1999] 1 AC 313.
Before looking at the decision and reasoning in that case it is necessary to consider the nature of the right to buy. This is a right created by s. 118 of the Housing Act 1985 which provides in ss (1):
"A secure tenant has the right to buy, that is to say, the right, in the circumstances and subject to the conditions and exceptions stated in the following provisions of this Part [of the Act]
(a) If the dwelling house is a house and the landlord owns the freehold, to acquire the freehold of the dwelling house;
(b) If the landlord does not own the freehold or if the dwelling house is a flat (whether or not the landlord owns the freehold), to be granted a lease of the dwelling house."
Sub-section (2) goes on to deal with the situation where the secure tenancy is a joint tenancy providing that the right to buy belongs jointly to all of the joint tenants or to such one or more of them as may be agreed between them; but such an agreement is not valid unless the person or at least one of the persons to whom the right to buy is to belong occupies the dwelling house as his only or principal home.
It is now established beyond a peradventure that a right to buy is dependant on the existence of a secure tenancy to which it is incidental. This proposition had been established by three decisions of this court namely those in London Borough of Sutton -v- Swann [1985] 18 HLR 14; Jennings & Jennings -v- Epping Forest District Council [1992] 25 HLR 241 and Bradford City Metropolitan Council -v- McMahon [1994] 1WLR 52. In Jennings and Jennings -v- Epping Forest DC Farquharson LJ giving the first judgment at the invitation of Dillon LJ, the third member of the court being Russell LJ, said at page 246:
"The structure of this part of the Act (his Lordship was here referring to Part V of the Act "The Right to Buy") makes much more sense if the meaning of the term "secure tenancy" is the same in each of these sections, namely that there must be such a tenancy subsisting at the time of the landlord's grant. Accordingly, on a construction of s. 138 I would allow this appeal and hold that the learned judge was in error in finding as he did. But the matter, in my judgment, at all events, is concluded on the authority of a case called London Borough of Sutton -v-Swann…….."
Later on the same page of his judgment Farquharson LJ is reported as citing a passage from the judgment of Ackner LJ in Swann'scase at page 145 of that report:
"The status of "secure tenants" has to exist, not only at the time when the claim to buy is made, but also at the time when the grant comes to be made. If during the period between claim and grant the tenant has ceased to be a secure tenant, he is not entitled to that grant."
If the secure tenancy ceases to exist, then the right to buy cannot be exercised. A person who has been the tenant of a local authority or of certain housing trusts acquires an entitlement to a discount in the price of a property owned by such a public sector landlord which increases the longer he or she has been a secure tenant of such a landlord. If such a person obtains a secure tenancy with a local authority or appropriate housing trust then after the relevant period and provided the property is occupied as the only or principal home, that person will be entitled to buy the property at the discount that person is entitled to by reason of the years he has been a secure tenant in the past. Consequently the entitlement to discount can be accumulated and can be carried from one secure tenancy to another, but the right to buy can only exist as an ancillary to a secure tenancy.
Section 37 of the Matrimonial Causes Act 1973 provides:
"(1) For the purposes of this section "Financial Relief" means relief under any of the provisions of sections 22, 23, 24, 27, 31 (except (ss(6)) and 35 above, and any reference in this section to defeating a person's claim for financial relief is a reference to preventing financial relief being granted to...
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