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Recent Cases and Legislation

 

Housing Law Updates

Succession

Click on the links below to see recent cases in each area of law:

 

Freeman v Islington LBC

[2009] EWCA Civ 536

Waller, Longmore, Jacob LJJ

To succeed to a secure tenancy, the 'successor' must have resided with the tenant. The Court favoured a narrow construction of these words, requiring an intention to make a home with the tenant rather than simply live with him

The appellant's (F) father was a secure tenant of the LA until his death in 2005, following which F claimed the right to succeed. F had stayed with her father at the property for 12 months prior to his death but had retained ownership of another flat, which she had kept as her address for correspondence. The Judge held that F had not 'resided with' her father so as to entitle her to succeed to his tenancy.

Held : The Court of Appeal favoured a narrow construction of the words 'resided with'. Mere temporary residence would not suffice as there had to be an element of 'home-making'; i.e. living in the property as a member of the tenant's household and making his/her home there. Although the retention of another home was not fatal to a claim in succession, it was a significant factor. Equally, the purported successor must intend to 'reside with' the tenant. This involved an intention to make a home with the tenant rather than simply live with them.

Newport CC v Charles – 17/07/08

[2008] EWCA Civ 893

Pill LJ, Sedley LJ, Longmore LJ

The LA could not evict a secure tenant who had hidden his mother's death for three years to avoid being moved to a different property under Gr.16. The time limit for evicting him had expired.

The tenant (T) had succeeded to a secure tenancy when his mother died. For three years T intentionally failed to notify the LA of his mother's death. The LA sought possession on Gr.16, but could only rely on this ground within three years of the mother's death. The LA argued that T was estopped from asserting the date of his mother's death as a defence to the claim.

Held : The LA's right to possession against a successor is not an interest in land capable of giving rise to a proprietary estoppel. The time limit had expired prior to the LA finding out about the mother's death and the LA was unable to rely on Gr.16.

 

 

Wandsworth LBC v Randall

[2007] EWCA Civ 1126

Sir Anthony Clarke MR, Dyson LJ, Jacob LJ

Gr.16 of Sch2 HA 85 involves consideration of whether the property is more extensive than required for the tenant. In determining the same, the court must consider the composition of the tenant's family at the date of the hearing, not the date of succession

The Court of Appeal so held in dismissing the appeal of the LA against an order for possession of a secure tenancy occupied by R. R's grandfather was granted a periodic tenancy in 1975 and, in 2004, after the tenancy had become secure, R's grandfather died. R, who had been living alone with his grandfather, succeeded to the tenancy and the LA served a notice seeking possession on the ground that the property was more extensive than required. Between service of the notice and the date of hearing, R's mother and half-sister moved into the house. The court had to decide whether the date at which R's family members were treated as such for the purpose of Gr.16 was the date of succession or the date of the hearing.

Held : Gr 16 allowed a court to order possession if three conditions were satisfied:

(1) The accommodation had to be more extensive than was reasonably required by the tenant. Considering the following conditions, the tenant's requirements were to be judged at the date of the hearing.

(2) Suitable alternative accommodation must be available for the tenant. This required consideration of accommodation that “will be available” (s.84(2)(c)); this was a date later than the hearing and certainly later than the succession.

(3) It must be reasonable to make the order. This reasonableness test required consideration of all relevant circumstances existing at the hearing.

In the circumstances, the composition of the family for the purposes of Gr.16 was not fixed at the date of the succession, but was to be determined as at the date of the hearing.

Birmingham City Council v Walker – 16/05/2007

[2007] UKHL 22

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Mance

The Housing Act 1985 s.88 prohibits a second succession to a secure tenancy. The events to which this section referred to were events in relation to tenancies that had become secure tenancies and not to events that had happened earlier.

The House of Lords so held in dismissing the appeal of the LA against a decision of the Court of Appeal that W was entitled to succeed to a secure tenancy on the death of his mother. The LA had granted a joint contractual tenancy to Mr & Mrs Walker in 1965; when her husband died in 1969, Mrs Walker became sole tenant. In 1980 Mrs Walker became a secure tenant following the introduction of HA 1980. Following her death in 2004, the LA served a notice to quit on W.

Held : When Mrs Walker became a sole tenant it was not of a secure tenancy and she was not therefore a successor. The events to which section 88(1) referred were events in relation to tenancies that had become secure tenancies and not to events which happened earlier. There were three observations supporting this interpretation: (1) the general presumption against retrospectivity; (2) the word "successor" most naturally meant successor to a secure tenancy; (3) there was no rational purpose in placing a retrospective effect on the definitions.

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