Solihull Metropolitan Borough Council v Hickin

JurisdictionEngland & Wales
JudgeLORD SUMPTION,LORD WALKER,LORD HOPE,LORD MANCE,LORD CLARKE
Judgment Date25 July 2012
Neutral Citation[2012] UKSC 39
Date25 July 2012
CourtSupreme Court

[2012] UKSC 39

THE SUPREME COURT

Trinity Term

On appeal from: [2010] EWCA Civ 868

before

Lord Hope, Deputy President

Lord Walker

Lord Mance

Lord Clarke

Lord Sumption

Solihull Metropolitan Borough Council
(Respondent)
and
Hickin (FC)
(Appellant)

Appellant

Jan Luba QC

Nicholas Nicol

(Instructed by Quality Solicitors Evans Derry)

Respondent

Bryan McGuire QC

Catherine Rowlands

(Instructed by Solihull Metropolitan Borough Council Legal Services)

Heard on 3 July 2012
LORD SUMPTION (WITH WHOM LORD WALKER AGREES)
1

Part II of the Housing Act 1980 was enacted in order to give the residential tenants of local authorities and certain other social landlords a degree of protection broadly comparable to that enjoyed by private tenants under the Rent Act 1977. It introduced a category of 'secure tenancy', whose essential features were that the tenant enjoyed a qualified security of tenure, and that the tenancy was transmissible once only to a member of the tenant's family occupying the property. The relevant statutory provisions governing secure tenancies are now to be found in Part IV of the Housing Act 1985.

2

This appeal raises a short but difficult point of law about the effect of the provisions governing the transmission of secure tenancies, where the property is let to joint tenants. Mr. and Mrs. Hickin became the joint tenants of a three bedroom terraced house at 81 Leahill Croft, Chelmsley Wood, Solihull in 1967. The freehold owner was initially Birmingham City Council, but the property was transferred in September 1980 to Solihull Metropolitan Borough Council, who were thereupon substituted as the landlords. On 3 October 1980, Part II of the Housing Act 1980 came into force and the tenancy became a secure tenancy. Mr. and Mrs. Hickin lived in the house together until some time after 1980 when Mr. Hickin left. Thereafter, Mrs. Hickin continued to live there until her death on 8 August 2007. Their daughter Elaine, the Appellant on this appeal, has lived in the house from the inception of the tenancy and is still there. The joint tenancy was never severed or replaced and was still subsisting at the time of Mrs. Hickin's death.

3

At common law, upon the death of a joint tenant, the tenancy is vested in the survivor, or jointly in the survivors if there is more than one: Cunningham-Reid v. Public Trustee [1944] KB 602. Upon Mrs. Hickin's death, therefore, her absent husband would have become the sole tenant. On that footing, the Council served notice to quit on him, and then began proceedings against Elaine for possession. Her case is that the common law right of her father was displaced by section 89 of the Act, which vested the tenancy in her. After a trial on agreed facts, Deputy District Judge Hammersley rejected that contention and ordered possession. HHJ Oliver-Jones QC allowed the appeal and declared that the tenancy vested in Elaine on her mother's death. The Court of Appeal (Lord Neuberger MR, Laws LJ and Sullivan LJ) allowed the appeal and restored the order of the Deputy District Judge.

4

The Housing Act 1985 has recently been amended, but the relevant provisions are those in force in August 2007, when Mrs. Hickin died. They are as follows:

"79. Secure tenancies

  • (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 sections 80 and 81 as the landlord condition and the tenant condition are satisfied.

  • (2) Subsection (1) has effect subject to

    • (a) the exceptions in Schedule 1 (tenancies which are not secure tenancies),

    • (b) sections 89 ( 3) and (4) and 90 ( 3) and (4) (tenancies ceasing to be secure after death of tenant), and

    • (c) sections 91 ( 2) and 93 (2) (tenancies ceasing to be secure in consequence of assignment or subletting).

  • (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.

81. The tenant condition

The tenant condition 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.

87. Persons qualified to succeed tenant

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 civil partner, 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.

88. Cases where the tenant is a successor

  • (1) The tenant is himself a successor if

    • (a) the tenancy vested in him by virtue of section 89 (succession to a periodic tenancy), or

    • (b) he was a joint tenant and has become the sole tenant, or

    • (c) the tenancy arose by virtue of section 86 (periodic tenancy arising on ending the term certain) and the first tenancy there mentioned was granted to another person or jointly to him and another person, or

    • (d) he became the tenant on the tenancy being assigned to him (but subject to subsections (2) to (3), or

    • (e) he became the tenant on the tenancy being vested in him on the death of the previous tenant, or

    • (f) the tenancy was previously an introductory tenancy and he was a successor to the introductory tenancy.

89. Succession to periodic tenancy

  • (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

    • (a) the tenant's spouse or civil partner is to be preferred to another member of the tenant's family;

    • (b) of two or more other members of the tenant's family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord.

  • (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 tenant's estate, unless the vesting or other disposal is in pursuance of an order made under

      • (i) section 23A or 24 of the Matrimonial Causes Act 1973 (property adjustment orders made in connection with matrimonial proceedings),

      • (ii) section 17 (1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or

      • (iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents); or

      • (iv) Part 2 of Schedule 5, or paragraph 9( 2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.)

    • (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.

90. Devolution of term certain

  • (1) This section applies where a secure tenant dies and the tenancy is a tenancy for a term certain.

  • (2) The tenancy remain 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 section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings), 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.

91. Assignment in general prohibited

  • (1) A secure tenancy which is—

    • (a) a periodic tenancy, or

    • (b) a tenancy for a term certain granted on or after November 5, 1982, is not capable of being assigned except in the cases mentioned in subsection (3).

  • (2) The exceptions are—

    • (a) an assignment in accordance with section 92 (assignment by way of exchange);

    • (b) an assignment in pursuance of an order made under—

      • (i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings),

      • (ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, etc.),

      • (iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents); or

      • (iv) Part 2 of Schedule 5, or paragraph 9( 2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership etc.)

    • (c) an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment.

113. Members of a person's family

  • (1) A person is a member of another's family within the meaning of this Part if

    • (a) he is the spouse or civil partner of that person, or he and that person live together as husband and wife or as if they were civil partners, or

    • (b) he is the person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece."

...

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