Joint tenancies and part IV of England’s Housing Act 1985

In Solihull MBC v Hickin ([2012] UKSC 39) Mr and Mrs H were joint tenants of a lease and Solihull MBC (‘the Council’) was the landlord. Mr. and Mrs H had lived in the property together with their daughter since 1967. The lease created a secure tenancy for the purposes of the Housing Act 1989. Mr. H left the property many years ago. Mrs H died and the daughter claimed to be entitled to succeed to the tenancy by virtue of section 89 of the Housing Act 1989. The Council denied that she had a secure tenancy and purported to bring the secure tenancy to an end by serving notice to quit on Mr. H. It all turned on the interpretation of the scheme established by part IV of the Housing Act 1989.

According to the Council (and the majority of the Supreme Court) when Mrs. H died the right of survivorship as between joint tenants meant that Mr. H was the sole tenant. As he no longer lived at the property, ‘the tenant’ no longer occupied the property as his only or principal home. Thus, there was no longer a secure tenancy (sections 79 and 81).

The daughter put forward a different view which was (in slightly modified form) accepted by the minority (Lord Mance and Lord Clarke) which gave priority to the scheme in section 89 of the Housing Act over the operation of the right of survivorship. Section 89 applies on the death of a secure tenant under a periodic tenancy. When that happens, the secure tenancy vests in a person qualified to succeed the deceased tenant (section 89(2)). The daughter was qualified to succeed her mother since she was a child living in the property as her only or principal home at the time of her mother’s death (section 87). Lord Mance’s dissenting judgment was to the effect that while the father’s rights as sole tenant would trump the daughter’s rights as successor if he too lived in the home as his principal or only dwelling, the daughter was entitled to succeed to the secure tenancy where the father could not.

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