Kingston upon Thames Borough Council v Prince
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROCH,MRS JUSTICE HALE,Lord Justice Roch |
| Judgment Date | 02 December 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1202-16 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 December 1998 |
| Docket Number | CCRTF 98/0368/2 |
[1998] EWCA Civ J1202-16
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KINGSTON UPON THAMES COUNTY COURT
(HIS HONOUR JUDGE BISHOP)
Royal Courts of Justice
Strand
London WC2
Lord Justice Roch
Mrs Justice Hale DBE
CCRTF 98/0368/2
MR K LEWISON QC and MR K RUTLEDGE (Instructed by The Legal Department, Royal Borough of Kingston upon Thames, Surrey, KT1 1EU) appeared on behalf of the Appellant
MR J GOUDIE and MR Z NABI (Instructed by Messrs Keepe Shaw, Twickenham, Middlesex, TW1 4AW) appeared on behalf of the Respondent
Wednesday 2 December 1998
For the reasons given in the judgment handed down, this appeal will be dismissed.
This appeal raises an interesting point which may be of some practical importance: whether a minor can succeed to a secure tenancy under the Housing Act 1985. His Honour Judge Bishop, sitting in the Kingston County Court on 26 February 1998, held that she could do so, but he himself gave the local authority leave to appeal.
The appellant local authority own a three bedroomed house at 109 Mount Road, Chessington. On 12 November 1979, they let it to Mr Peter Prince on a weekly tenancy. This automatically became a secure tenancy when the Housing Act 1980 came into force.
Mr Prince died on 22 July 1996. Living with him at the time were his daughter, Wendy Prince, and her daughter, Marie Prince, then aged 13. Wendy Prince had only been living there for about six months. She was not therefore a person qualified to succeed the tenant under s 87 Housing Act 1985. Marie Prince, however, had been living with her grandfather for about three years.
The local authority served notice on Wendy Prince requiring her to vacate the property with effect from 23 December 1996. On 25 February 1997 they brought possession proceedings against her. On 14 April 1997, District Judge Coni made a possession order. Although Wendy Prince had no defence, there was obviously some concern about Marie, because the local authority undertook to carry out an assessment of the family. This concluded that Marie needed a secure home and stability.
On 19 August 1997 an application was made to join Marie as a party and to set aside the possession order. On 20 November 1997, District Judge Gold joined Marie as second defendant, appointed Wendy as her Guardian ad Litem, set aside the possession order, and gave directions for trial.
On 26 February 1998, His Honour Judge Bishop heard the local authority's appeal against that order. He decided, as had the district judge, that a minor child could succeed to a secure tenancy. As a result, the local authority's claim for possession was dismissed. The substance of the issue was dealt with (in paragraph 6 of his order) as follows:
'It is declared that the tenancy of 109 Mount Road, Chessington is held by the first Defendant upon trust for the second Defendant until she reaches the age of morority [sic], and that the said tenancy has been so held since 22nd July 1996.'
It is helpful to set out the relevant provisions of the Housing Act 1985, which consolidated the equivalent provisions in the Housing Act 1980 as amended with other legislation. Secure tenancies are defined in s 79:
'(1) A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in section 80 and 81 as the landlord condition and the tenancy condition are satisfied.
[(2) deals with exceptions, none of which apply here.]
(3) The provisions of this Part apply in relation to a licence to occupy a dwelling house (whether or not granted for a consideration) as they apply in relation to a tenancy.
[(4) excepts licences to squatters from subsection (3)]'
The 'landlord condition' in section 80(1) is that 'the interest of the landlord belongs to one of' a number of bodies, including a local authority. The 'tenant condition' defined in section 81 is that
'… the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.'
Section 87 defines the people qualified to succeed the tenant thus:
'A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling house as his only or principal home at the time of the tenant's death and either—
(a) he is the tenant's spouse, or
(b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death;
unless, in either case, the tenant was himself a successor as defined in section 88 [which does not apply here]'
Section 113(1) defines 'a member of another's family' for this purpose as 'that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.'
Hence it is agreed between the parties for the purpose of this appeal (i) that Marie was a member of Mr Prince's family; (ii) that she occupied the house as her only or principal home at time of his death; and (iii) that she had resided there with him throughout the period of twelve months immediately preceding his death. In other words, it is agreed that Marie fulfilled all three of the qualifications listed in section 87. Nevertheless the local authority do not admit that she is entitled to succeed to the tenancy under the provisions of the Act. Succession to periodic tenancies is provided for in section 89:
'(1) This section applies where a secure tenant dies and the tenancy is a periodic tenancy.
(2) Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules—….'
(3) Where there is no person qualified to succeed the tenant, the tenancy ceases to be a secure tenancy —
(a) when it is vested or otherwise disposed of in the course of the administration of the deceased's estate, unless the vesting or other disposal is in accordance with an order made under [the Matrimonial Causes Act 1973, the Matrimonial and Family Proceedings Act 1984 or, following amendments made in 1996, the Children Act 1989]; or
(b) when it is known that when the tenancy is so vested or disposed of it will not be in pursuance of such an order.
(4) A tenancy which ceases to be a secure tenancy by virtue of this section cannot subsequently become a secure tenancy.'
It is worth contrasting section 89 with the provisions for devolution of a term certain in section 90:
'(1) This section applies where a secure tenant dies and the tenancy is a tenancy for a term certain.
(2) The tenancy remains a secure tenancy until—
(a) it is vested or otherwise disposed of in the course of the administration of the tenant's estate, as mentioned in subsection (3), or
(b) it is known that when it is so vested or disposed of it will not be a secure tenancy.
(3) The tenancy ceases to be a secure tenancy on being vested or otherwise disposed of in the course of administration of the tenant's estate, unless—
(a) the vesting or other disposal is in pursuance of an order made under [the legislation listed in s 89(3)(a)], or
(b) the vesting or other disposal is to a person qualified to succeed the tenant.
(4) A tenancy which ceases to be a secure tenancy by virtue of this section cannot subsequently become a secure tenancy.'
Nothing in the 1985 Act limits the operation of any of these provisions to adults. It has been established for some time, apparently uncontroversially, that a minor can succeed to a statutory tenancy under the Rent Acts: see Portman Registrars v Mohammed Latif [1987] 6 CL 217, a decision of His Honour Judge Hill-Smith in the Willesden County Court. From that brief report, it appears that his reasoning was that a statutory tenancy is not an interest in land and a minor does have the capacity to contract for necessaries such as lodging.
The principal argument before the Circuit Judge, therefore, was based upon the incapacity of a minor to hold a legal estate in land. Section 1(1) of the Law of Property Act 1925 provides that:
'The only legal estates in land which are capable of subsisting or of being conveyed or created at law are (a) an estate in fee simple absolute in possession; (b) a term of years absolute.'
A 'term of years absolute' is defined in section 205(1)(xxvii) to include 'a term for less than a year, or for a year or years and a fraction of a year or from year to year'.
Therefore, the argument runs, a periodic tenancy is a term of years absolute, a term of years absolute is a legal estate, and section 1(6) of the 1925 Act makes it clear that:
'A legal estate is not capable…of being held by an infant.'
I pause to point out that this is a circular argument. The fact that leases or tenancies are capable of being legal estates does not mean that they must be: as has recently been pointed out in this court in the case of R v Tower Hamlets London Borough Council ex p Goetz, The Times, 9 October 1998, the concept of an equitable term of years is well known to the law.
The Judge was referred to Hill and Redman's Law of Landlord and Tenant (18th edition) (Section D edited by Paul Matthews) at page D294, which suggests three possible solutions to the problem:
(1) 'Implied repeal pro tanto of the 1925 legislation, so that a minor...
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