South Northamptonshire District Council v Power
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR |
| Judgment Date | 30 March 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0330-4 |
| Date | 30 March 1987 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0359 |
[1987] EWCA Civ J0330-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BANBURY
COUNTY COURT
(HIS HONOUR JUDGE J.E.M. IRVINE)
Royal Courts of Justice
Lord Justice Kerr
and
Lord Justice Woolf
87/0359
Case No. 86 01319
MR. TIMOTHY JONES (instructed by Messrs. Franklin, Piggott & Curtin, Solicitors, Banbury, Oxfordshire OX16 OAE) appeared on behalf of the Respondent (Appellant)
MR. W. R. HUNTER. (instructed by Messrs. Shoosmiths & Harrison, Solicitors, Banbury, Oxfordshire OX16 9AB) appeared on behalf of the Applicant (Respondent)
This is an appeal from a judgment of His Honour Judge Irvine given on 5th August 1986 in the Banbury County Court. It raises a novel point of general importance both under the Housing Legislation and the Rent Acts. Since it is a short point we propose to give judgment immediately despite the late hour.
The local authority claims possession of council accommodation at No. 39 Westhorp, Greatworth, in Northamptonshire. The defendant claims that he is entitled to remain in occupation as a successor on the death of the tenant of the local authority, pursuant to section 30(2)(b) of the Housing Act 1980. That legislation, we have been told, is now to be found in section 87 of the Housing Act 1985, but it is common ground that for present purposes this makes no difference.
The facts are briefly as follows. The defendant, Mr. Power, began to live with the deceased, Mrs. Tulloch, as husband and wife, in 1982. That was found by the judge. At that time they lived together in Mrs. Tulloch's former matrimonial home at Bozeat after her husband had died. In 1985 Mrs. Tulloch became a secure tenant of the plaintiff authority at the address to which I have referred. She had not previously been a council tenant anywhere. I mention that for the sake of completeness, but I am not convinced that the position would in that event have been different, though I express no view about it.
The accommodation at 39 Westhorp, Greatworth, appears to have been senior citizen's accommodation for a single person. The judge found as a fact that Mrs. Tulloch adopted, as he put it, two faces. One to her family and friends, who knew all about the fact that she had been living with Mr. Power, the defendant, for some time, and continued to live with him in this council accommodation; and another to the plaintiff local authority, to whom she said nothing about the fact that Mr. Power was living with her there. That, however, does not raise any question on this appeal, though we have been told by Mr. Hunter on behalf of the local authority that in the event that the authority's claim for possession fails, he has reserved the right to apply in other proceedings to have the tenancy set aside on the ground that the local authority were not aware that Mr. Power was also living in that accommodation. On the other side, we have been told by Mr. Jones, for Mr. Power, that he would in that event contend that Mr. Power had a right to be there, I think under section 35 of the Act, on the ground that he was a lodger. We are not concerned with that, and I go back to the chronology.
The secure tenancy was granted to Mrs. Tulloch on 21st January 1985. But she did not move into the premises until 20th May 1985, when she moved in together with Mr. Power. Nothing turns on the latter date. But unfortunately Mrs. Tulloch died on 31st October 1985, when she had been a tenant for less than 12 months—about 9 months.
One then comes to the issue raised by section 30 of the Housing Act 1980. I will read subsections (1) and (2); one gets no assistance from subsection (3)
"(1) Where a secure tenancy is a periodic tenancy and, on the death of the tenant, there is a person qualified to succeed him, the tenancy vests by virtue of this section in that person…..unless the tenant was a successor".
"(2) A person is qualified to succeed the tenant under a secure tenancy if he occupied 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".
Mr. Power fulfils the requirement of the definition of "a person (who) is a member of another person's family" in section 50(3) of the Act. I read the relevant part:
"A person is a member of another person's family within the meaning of this Chapter if he is his spouse"—and then various other relationships are referred to—"or if they live together as husband and wife".
The judge found that Mrs. Tulloch and Mr. Power had lived together as husband and wife since 1982.
But the question, of course, is whether the fact that they had previously lived together as husband and wife in other premises at Bozeat entitles Mr. Power to say that he falls within the provisions of section 30(2)(b). Being "another member of Mrs. Tulloch's family", the question is: Has he resided with the tenant "throughout the period of twelve months ending with the tenant's death"? Mr. Power says that the judge found that he did. What is said—not surprisingly—on behalf of the local authority is that these words connote a requirement of residence, not only with the person who, until his or her death, had been the tenant, but at the premises in question with that particular person for twelve months, during which he or she was the tenant. Which of those two constructions is correct is the short issue before this court. It is largely a matter of first impression.
The judge considered it to be a finely balanced point. But at the end of the day he had no hesitation in saying that Mr. Power did not fall within that provision solely by reason of the fact that he and Mrs. Tulloch had lived together for more than 12 months, since they had lived together elsewhere during part of that period. Accordingly, he made an order for possession in favour of the local authority.
As a matter of first and last impression I agree with the judge's construction which has also been my impression about the effect of the parallel provision in the Rent Acts for many years.
The reference in section 30(2)(b) is to the requirement that the member of the family "has resided with the tenant". This suggests a connection with the premises of which he claims to be a successor to the tenant. The words "resided with" are to be contrasted with the words "live together" as husband and wife. Of course, the expression, "living together as husband and wife" is a colloquial phrase, and one cannot place too much emphasis on it. But the word "resides" connotes a connection with the property and not merely a close relationship with the person who was the tenant of it.
The other point to which Mr. Hunter has drawn attention and to which I would give some weight, is that the tenant, with whom the defendant must have resided for the required time, must hot only have been a tenant of the premises but a tenant under a secure tenancy. Those words are defined in section 28 of the Act. The tenant has to satisfy subsection (3), that he is an individual and occupies the dwelling-house "as his only or principal home". That, of course, was satisfied by Mrs. Tulloch at the date of her death, but it shows, I think, that wherever the word "tenant" occurs in that provision, what the legislation has in mind is not merely a person, but a person who has the property qualification, or connection, of being a tenant under a secure tenancy.
Mr. Hunter also submitted that one gets assistance from Chapter 1 of the Act, which deals with the right to buy. He referred to a number of provisions which show, in that context,that occupation of other premises under a secure council house tenancy is sufficient to obtain rights under that Part of the Act. He then invited us to conclude in relation to section 30 that occupation of other secure council house property would also be sufficient to the extent that co-residence with a tenant in such premises would satisfy the requirement of succession, whereas co-residence in non-council house property would not be sufficient.
If such facts were to arise there might be something in that analogy. But for present purposes I place no reliance at all on the fact that Mrs. Tulloch and Mr. Power came from private accommodation as opposed to council house accommodation.
That, so far as it goes, is the only assistance that one gets from the Housing Act itself. Both counsel gave illustrations of odd consequences which could arise if their opponent's construction were correct. But that is a frequent situation and of little help. However, both were agreed—indeed, it is obvious—that this legislation stems from the very similar provisions in the Rent Acts. The corresponding provision is in the Rent Act 1977, Schedule 1, Part I, paragraph 3. There the word "tenant" has to be read together with the full description in paragraph 1 in the same way as with section 28 in the present Act. The tenant has to be a tenant under a secure tenancy. So the alleged successor under paragraph 3 has to be a successor to someone who satisfies paragraph 1 by being, immediately before his death, a protected tenant of a dwelling-house, or the statutory tenant of it, by virtue of his protected tenancy. Subject to that difference, and the fact that the residence requirement is six months in the case of the Rent Acts, whereas it is twelve months in the case of the Housing Act-, there is no difference of substance...
To continue reading
Request your trial
-
Waltham Forest London Borough Council v Thomas
...Road to the respondents because of the earlier decision of the Court of Appeal (Kerr and Woolf L.JJ.) in the case of South Northamptonshire District Council v. Power [1987] 1 W.L.R. 1433. In that case the appellant had made her home with a tenant of a private sector house for three years an......
-
The Mayor and Burgesses of the London and Another (Plaintiffs) Respondents) v Gary Thomas Appellant)
...sustained argument on behalf of the appellant, I think that the question was settled by the decision of this court in South Northamptonshire District Council v. Power [1987] 1 W.L.R. 1433. 2 The appellant is Mr. Gary Thomas. He had a brother named Webster Thomas, who died on 21st April 1988......
-
City Of Edinburgh Council V. Susan Johnston
...use". The word "connection" is used, in relation to section 30(2)(b) of the Housing Act 1980, in South Northamptonshire DC -v- Power, [1987] 3 All ER 831, 836 to which the sheriff principal was referred. The case of Collins arose under statutory law when a minimum period of residence was re......
-
CPC 1446 2008
...on the property rather than on the relationship between the parties” (referring to South Northamptonshire District Council v Power [1987] 3 All E.R. 831 at 12. The further explanation contained in paragraph 3(1) and (2) of Schedule 1 to the State Pension Credit Regulations 2002 mirrors equi......