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Council wins Supreme Court battle over tenancy succession

Solihull Metropolitan Borough Council has won a battle in the Supreme Court – by a majority of three to two – over succession to housing tenancies.

The case of Solihull Metropolitan Borough Council v Hickin [2012] UKSC 39 revolved around the interplay between common law rules and the Housing Act 1985. 

The central issue was whether on the death of one of two joint tenants of a tenancy which is secure under Part IV of the 1985 Act, the tenancy will vest in the resident child of the deceased tenant by virtue of the succession provisions in Part IV, rather than the non-resident joint tenant by virtue of the common law doctrine of survivorship.

The facts of the case dated back to 1967, when Mr and Mrs Hickin became joint tenants of a three-bedroom terraced house in Chelmsley Wood, Solihull in 1967.

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The Appellant in the Supreme Court case was their daughter Elaine Hickin, who had lived in the house since the beginning of the tenancy.

The council became the freehold owner and landlord of the property in 1980. On 3 October 1980, the tenancy became a secure tenancy pursuant to Part II of the Housing Act 1980. The Housing Act 1980 was later consolidated into the 1985 Act.

Some time after 1980 – probably around 2001 – Mr Hickin left when the marriage broke down. The tenancy continued as a joint tenancy in the names of Mr and Mrs Hickin.

Mrs Hickin lived in the house until she died on 8 August 2007.

Solihull MBC subsequently served notice on Mr Hickin to quit the property. The council believed that he was the sole tenant and since he no longer lived there, the tenancy was no longer secure.

The council also started possession proceedings against the daughter. She resisted, arguing that the secure tenancy had vested in her – and not her father – after her mother’s death by virtue of s. 89 of the 1985 Act.

Deputy District Judge Hammersley ordered possession. This was overturned by HHJ Oliver-Jones QC, sitting in the High Court, who concluded that the tenancy had vested in the appellant.

The Court of Appeal allowed Solihull’s appeal and restored the order of Deputy District Judge Hammersley.

The Supreme Court dismissed the appeal by three (Lord Sumption, Lord Walker and Lord Hope) to two (Lord Mance and Lord Clarke).

Giving the lead judgment, Lord Sumption said the relationship between Part IV of the Housing Act and the common law was not in doubt.

“A secure tenancy is not just a personal right of occupation,” he said. “It is an estate of land whose incidents are defined by the general law, save insofar as these are modified by the Act.”

The common law position is that upon the death of a joint tenant, the tenancy is vested in the surviving joint tenant or in all of the survivors if there is more than one.

“Upon the death of one of two persons holding under a joint tenancy, the interest of the deceased person is extinguished,” Lord Sumption said. “The survivor thereby becomes the sole tenant. But there is not transmission of the tenancy.”

The judge said that the wider scheme contained in sections 87 to 91 of the 1985 Act operated to determine the transmission of a secure tenancy.

Under this scheme, subject to limited exceptions (such as property adjustment orders in matrimonial proceedings), a secure tenancy cannot be transmitted with the benefit of the statutory security of tenure, whether inter vivos or in the course of the administration of the tenant’s estate, except to a person qualified to succeed under s. 87.

A person is qualified to succeed if he or she is “the deceased tenant’s spouse or civil partner or any other member of the deceased’s family, within the very broad definition contained in section 113”.

The Appellant argued that sections 87-89 constituted an exhaustive code governing the fate of a secure periodic tenancy upon the death of a tenant, and the operation of these provisions was mandatory and automatic, displacing the general law.

Section 89 of the Housing Act 1985 vests a tenancy in a qualified person if (i) “a secure tenant” has died; (ii) the tenancy was a periodic tenancy; (iii) the qualified person has occupied the house as her only or principal home for the period of 12 months proceeding the death and (iv) the tenant was not herself a successor within the meaning of Section 88.

Lord Sumption rejected the tenant’s argument, saying that sections 87 to 91 of the 1985 Act did not wholly displace the general law – “even in the area which they cover”.

This was because:

  1. They were concerned only with the transmission of secure tenancies by dispositions inter vivos or upon death. They did not deal, “at any rate expressly”, with the subsisting contractual and proprietary relationship between the landlord and an existing tenant who had not died or disposed of his interest.
  2. The statute necessarily operated by reference to certain basic principles of the law of property which served to identify what were the legal characteristics of the estates in land whose transmission was being regulated.
  3. In a number of cases the Act did not modify the general law governing the transmission of tenancies, but only the statutory security of tenure available where the tenancy has been transferred.

Lord Sumption said that at common law and by virtue of section 8 of the Housing Act 1985, Mr and Mrs Hickin were joint secure tenants “for as long as one of them occupied the property as an only or principal home”.

He added: “Upon Mrs Hickin’s death, the tenancy subsisted and Mr Hickin remained the tenant. He did not succeed Mrs Hickin. He simply continued to enjoy the same rights as he always had, under an agreement with the local authority to which he was and remained party.”

Mr Hickin was therefore the sole tenant, but as the ‘tenant condition’ in s. 81 was no longer satisfied, the tenancy had ceased to be secure.

The judge said it would have been open to Mr Hickin to revive the tenancy’s secure status by returning to live in the property at any time before the tenancy was terminated by service of a notice to quit.

Lord Sumption said the provisions of the Housing Act 1985 did not affect this result. For the purposes of section 89(1), “a secure tenant” died only when a sole tenant died.

“If the tenancy is a joint tenancy, the tenant has not died if there remains at least one living joint tenant in whom all the proprietary and contractual rights attaching to the tenancy subsist,” he said.

The judge pointed out that section 89 of the 1985 Act was a mandatory provision which was wholly concerned with the transmission of the tenancy to a person other than the previous tenant, on account of the latter’s death.

“This makes sense only on the assumption that there no longer is a previous tenant,” he said. “Where there is a surviving joint tenant, the whole statutory basis for disposing of the succession to the tenancy is absent.”

Lord Sumption said it was not necessary to provide for the transmission of a tenancy on death unless there was a vacancy. “If the tenancy subsists in the surviving joint tenant, there is none.”

The survivor’s right was not a matter of transmission, the judge said, adding that he had the same rights as he always did.

Lord Sumption said that if Parliament had intended the section to operate to exclude the common law rights of a joint tenant, it would have done so expressly.

Lord Hope, who gave a concurring judgment, pointed out that an express provision of this sort was made in the Housing (Scotland) Act 2001. This indicated the kind of statutory language that could be used if the policy was to override the common law right of survivorship.

In his dissenting judgment, Lord Mance said he would have allowed the appeal.

“Where a joint tenant who is in occupation and is a secure tenant dies, and the surviving joint tenant is not in occupation, the secure tenancy cannot continue in the surviving tenant and the surviving tenant cannot be a secure tenant,” he said.

“In this situation, nothing in the Housing Act 1985 recognises or permits any right of survivorship which can oust the mandatory statutory provisions for section contained in section 89, read with sections 87 and 88.”

Lord Mance therefore took the view that the tenancy vested in the Appellant upon Mrs Hickin’s death.

The other dissenting judge, Lord Clarke, said he would also have allowed the appeal on the ground that transmission under the Housing Act 1985 to a qualified person occurred when any individual joint tenant died. In his view the person qualified to succeed Mrs Hickin was the Appellant.

Bryan McGuire QC and Catherine Rowlands of Cornerstone Barristers represented Solihull MBC.

In a statement they said: “Solihull has established a ‘no vacancy’ rule: whilst at least one joint tenant remains alive, there is no vacancy and there is no room for the operation of the succession provisions. The question of who succeeds to the joint tenancy does not arise as long as one of the joint tenants remains alive. The tenancy continues in existence – ‘the tenant’ has not all died. Accordingly Mr Hickin remained the tenant, and there was nothing to which Elaine could succeed.

“The result has potential impact whenever, as is very often the case, there is a joint tenancy. The result is good news for joint tenants, who are no longer at risk of losing their rights automatically on the death of one of them.”

In a statement, Solihull said it was pleased with the outcome of the hearing.

A spokeswoman said: “We obtained a possession order on the basis that the husband was the tenant, but he had moved away and lost security of tenure so his tenancy could be terminated by service of a Notice to Quit.

“This decision has now been confirmed by the Court and clarifies the future situation for joint tenants should one of them die.”

Philip Hoult

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