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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/868.html
Cite as: [2010] 1 WLR 2254, [2011] PTSR 103, [2010] 31 EG 62, [2010] HLR 45, [2010] EWCA Civ 868, [2010] 2 EGLR 147, [2010] WLR 2254, [2011] PTSR 103.

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		Neutral Citation Number: [2010] EWCA Civ 868
		Case No: B5/2010/0069

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
His Honour Judge Oliver-Jones QC
Appeal Ref: 9/0161A

Royal Courts of Justice
Strand, London, WC2A 2LL

27/07/2010

B e f o r e :

MASTER OF THE ROLLS
LORD JUSTICE LAWS
and
LORD JUSTICE SULLIVAN
____________________

Between:

	Solihull Metropolitan Borough Council	Appellant
	- and -
	Elaine Hickin	Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

Catherine Rowlands (instructed by Solihull MBC Legal Services) for the Appellant
Nicholas Nicol (instructed by Evans Derry Binnion) for the Respondent
Hearing date : 13th July 2010
____________________

HTML VERSION OF JUDGMENT
____________________

Master of the Rolls:

This appeal raises a short, and not entirely easy, point, namely whether the respondent is entitled to succeed to a secure tenancy of a house under Part IV of the Housing Act 1985, following the death of her mother, with whom she lived in the house. The respondent's mother was the joint tenant of the house with her husband, who survived her, and who had long ceased to live there.

The facts are as follows. On 29^th September 1980, 81 Leahill Croft, Chelmsley, Solihull ("the house") was let by the Solihull Metropolitan Borough Council ("the Council") to Sylvia Hickin and her husband Raymond Hickin, on a weekly tenancy. They initially resided there together with their daughter, Elaine Hickin. At some time between 1980 and 2007, probably in 2001, Mr and Mrs Hickin's marriage failed, and Mr Hickin left the house, never to return. Together with Miss Hickin, Mrs Hickin continued to reside in the house as their only or main residence. Mrs Hickin died on 8^th August 2007. Following Mrs Hickin's death, the Council served a notice to quit ("the notice") on Mr Hickin, and then issued proceedings for possession of the house against Miss Hickin.

In those circumstances, the respective arguments of the parties are as follows. The Council contend that, as the tenancy was jointly held by Mr and Mrs Hickin, on the death of Mrs Hickin it became vested in Mr Hickin alone by virtue of the doctrine of survivorship, and, as he did not reside in the house, the tenancy was not a secure tenancy, and therefore could be, and has been, brought to an end by the notice. On the other hand, Miss Hickin contends that, as her mother was a secure tenant of the house under Part IV of the 1985 Act, she, Miss Hickin, as her daughter and only person residing with her at the date of her death, was entitled to succeed, and did succeed, to the secure tenancy, so she is now a secure tenant entitled to remain in the house.

There is no doubt that, as a matter of elementary property law, where a tenancy is granted to two persons as joint tenants, and one of those persons dies, the tenancy becomes vested in the survivor as the sole tenant. That is sometimes known as a doctrine, or right, of survivorship, and is an integral ingredient of a jointly owned interest in land: see Megarry and Wade, The Law of Real Property (7^th edition 2008), paragraph 13-003. Accordingly, unless the provisions of Part IV of the 1985 Act provide otherwise, the Council's case must be correct. So I turn to the provisions of Part IV of the 1985 Act.

Section 79 defines a secure tenancy in these terms:

"(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.

….

(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. …."

Section 80 identifies "the landlord condition", and it is satisfied where, as here, the landlord is a local authority. Section 81(1) sets out "the tenant condition" in these terms, so far as relevant:

"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."

Section 82 provides for "security of tenure", and its effect is to preclude a landlord obtaining possession of premises let on a secure tenancy save on specified grounds.

Sections 87 to 90 are concerned with "succession on death of tenant". Section 87 is in these terms:

"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."

Section 88, so far as relevant, provides as follows:

"(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 …."

Section 89 is concerned with "succession to periodic tenancy", and it states:

(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."

Section 90 is a somewhat similar provision relating to a fixed term tenancy. Section 113 identifies what is meant by "Members of a person's family".

On behalf of Miss Hickin, Mr Nicol fastens on subsections (1) and (2)(b) of section 89, and argues as follows:

i) Section 89 (1) is engaged, because Mrs Hickin was "a secure tenant" who died, and the tenancy in question was a periodic tenancy;

ii) Section 89 (2) is engaged, because Miss Hickin was "a person qualified to succeed the tenant" because she was a, indeed the only, member of Mrs Hickin's family who was living with her in the house at the date of her death.

iii) Accordingly, by virtue of Section 89(2) the tenancy "vest[ed]" in Miss Hickin "by virtue of this section".

If one simply fastens on the wording of section 89(1) and (2), that argument seems, at any rate at first sight, to follow from the words of the section, and can be said to produce a satisfactory result in this case. So far as Mr Hickin is concerned, although he would, according to the common law, have become the sole tenant under the tenancy on Mrs Hickin's death pursuant to the doctrine of survivorship, he was deprived of that benefit by the statutory vesting of the tenancy in Miss Hickin, and the consequent divesting of the tenancy from him. As she was living there and he was not, that seems an unexceptionable result.

However, one cannot, of course, construe the words of section 89(1) and (2) on their own: they have to be interpreted in their wider statutory context. Furthermore, one has to consider whether the construction advanced by Mr Nicol produces a sensible outcome, when considered more widely.

In that latter connection, it seems to me that, while the interpretation put forward by Mr Nicol produces a perfectly satisfactory result on the facts of the present case, it could produce a quite extraordinary result in other circumstances. Consider a case where two women, each of whom has a child, are granted a joint tenancy of a property in which both of them live together with their respective children. On the death of one of the women, Mr Nicol's argument, as he accepts, would result in the tenancy vesting in her child, and the surviving secure tenant being divested of her interest under the tenancy, and without any right to stay in her home, in which, until the death of her co-tenant, she was a secure tenant. This seems to me to be a rather absurd, or at least capricious, result, amounting almost to a sort of reverse tontine, which is most unlikely to have been intended by the legislature.

Mr Nicol nonetheless argues that such a result is consistent with the policy of Part IV of the 1985 Act, on the basis that the whole purpose of the succession provisions is to ensure that members of the tenant's family can succeed to the tenancy. I cannot accept that this aspect of the policy of the 1985 Act can possibly have been intended to go so far as to deprive an existing secure tenant (namely the surviving joint tenant) of any security simply to enable the child of the deceased tenant to succeed. All the more so given that only one succession is permitted, and given that section 88(1)(b) specifically envisages a joint tenant becoming a sole tenant, presumably by survivorship.

With a little more force, Mr Nicol points to the fact that, if the doctrine of survivorship applies, as the Council argues, then the child of the deceased tenant would be at risk of having to vacate on her parent's death, even though, if the child's parent had been a sole tenant, the child would have been entitled to succeed to the tenancy. I do not find that a particularly curious result, and it is certainly not one that could be described as capricious or absurd.

Mr Nicol also argues that a secure tenancy granted to two people who were not married would have been an unlikely arrangement in 1985. It does not seem to me to have been unlikely: the 1985 Act was passed 20 years before the Civil Partnership Act 2005, and 15 years before the Human Rights Act 1998, came into force, but it was at a time when gay relationships were generally accepted. So it seems to me positively likely that many local housing authorities would have been prepared to grant joint tenancies to gay couples. Furthermore, tenancies could have been granted jointly to siblings, who, if they have lived together with respective children, could have posed great problems to the succession procedures under section 89(2)(b) if the doctrine of survivorship, as advanced by the Council, did not apply.

Furthermore, the notion that a child of the first joint tenant to die should have no further rights in the property is symmetrical with the fact that, where a tenancy is granted to one or both partners in a marriage (or, now, civil partnership) who live together with their child, then, on the death of the longer living partner, his child would have no right to succeed to the tenancy, and would have no further rights in the property, in the light of the limitation to one successor at the end of section 87.

The notion that the doctrine of survivorship applies in the way that the Council argues, so that, when Mrs Hickin died, Mr Hickin became the sole tenant, seems to be consistent with the description of the way in which Part IV of the 1985 Act works, as described by Lord Hoffman, giving the only reasoned opinion in Birmingham City Council v Walker [2007] UKHL 22; [2007] 2 AC 262, para 5. After referring to the way in which the Rent Acts gave security of tenure and provided for succession, he said this in relation to secure tenancies, which originated in the Housing Act 1980, under provisions which were than consolidated in the 1985 Act:

"The method adopted by the 1980 Act to deal with transmissions is different. It reflects the fact that a secure tenancy is different in nature from a statutory tenancy. Whereas the statutory tenancy is unassignable, not an estate in land but a mere "personal right of occupation" (see Lord Greene MR in Carter v SU Carburetter Co [1942] 2 KB 288, 291), a secure tenancy is an orthodox estate in land which, subject to specific restrictions in the 1980 Act, can be assigned, held in joint names, pass by survivorship and be disposed of by will on death. Thus, while a statutory tenancy can pass from one person to another only in very limited circumstances (such as the statutory transmission on death or by a court order on divorce) a secure tenancy can in principle pass in any way permissible at common law."

When construing the succession provisions in the 1985 Act, it seems to me that one should begin with the introductory and governing provision, namely section 87. This refers to a person being qualified "to succeed the tenant under a secure tenancy" and refers to the person who succeeds as having to have been occupying the property concerned "at the time of the tenant's death". Thus, it appears to me that the statute envisages, perhaps unsurprisingly, that one is considering the person who is "the tenant". In the present case, however much Mr Hickin may have ceased to have any connection with the house in practice, there is no doubt, as is realistically accepted by Mr Nicol, that he remained a co-tenant with Mrs Hickin up to the time of her death. In those circumstances, it seems to me that, on Mrs Hickin's death, "the tenant" had not died: one of the people comprising the "the tenant" had died.

This is very similar to the argument that failed in Lloyd v Sadler [1978] 774 in relation to section 3(1)(a) of the Rent Act 1968. However, that case was decided on the basis that "where the strict application of the doctrine of joint tenancy would lead to unreasonable results, or results which the legislature is unlikely to have intended, it is permissible for the court to conclude that the legislature did not so intend but that, instead in such a case the phrase 'the tenant', where there is a joint tenancy, is to be read as meaning 'the joint tenants or any one or more of them' "– per Megaw LJ at [1978] 1 QB 774, 786H. Furthermore, as he had pointed out at [1978] 1 QB 774, 782A, there was the "remarkable fact" that "the Rent Acts throughout their long history have never made any relevant express provision relating to joint tenants or joint tenancies".

Neither of those two observations apply in the present case. As I have sought to demonstrate, it seems to me that departing from "the strict application of the doctrine of joint tenancy" when construing the succession provisions of Part IV of the 1985 Act would actually produce an unreasonable result. Furthermore, in that part of the 1985 Act, unlike in the 1968 Act, joint tenancies are specifically contemplated in section 88(1)(b): the legislature specifically contemplated the possibility of a secure tenancy becoming vested in one of two joint tenants, presumably as a result of the doctrine of survivorship.

As I have implied, in the present case it can be said with some force that the result contended by Mr Nicol is rather more attractive than that supported by Miss Rowlands, on behalf of the Council. However, there are two answers to that. First, one should not accord a particular meaning to a statutory provision merely because it produces a just result in the particular case before the court. One should only give weight to that sort of argument if one is satisfied that a particular interpretation would produce a just and workable result in at least the great majority of cases in which the provision falls to be applied, and one should certainly not give it much weight if the interpretation could produce capricious results.

Quite apart from that, the result in the present case on the Council's interpretation is not particularly surprising. As Sullivan LJ pointed out in argument, if Mr and Mrs Hickin had been living together with Miss Hickin, then, on Mrs Hickin's death Mr Hickin would become the sole tenant, and, on his death, Miss Hickin would have no security, because of what is said at the end of section 87 and in section 88(1)(b). In other words, if she had lived together with her father and her mother, Miss Hickin would have had no protection following the death of her father after her mother, and it is thus not particularly surprising that she had no security following the death of her mother, if her father was not living with her and her mother. I am not thereby suggesting that the Council's argument in the present case produces the answer which I would have preferred to reach on the particular facts of the case; what I am saying is that the result of the Council's interpretation, even on the facts of this case, does not strike me as particularly surprising or unjust.

It is right to mention another argument raised by Mr Nicol, namely that, because section 79(3) provides that the secure tenancy regime applies to the licences as well as tenancies, the interpretation favoured by Miss Hickin should be preferred, because it produces a consistent result whether the joint interest granted is a licence or a tenancy. I am unimpressed with that argument. On one view, the effect of section 79(3) is to require the outcome in relation to a case involving a licence to be identical to that which it would be if the licence had been a tenancy, in which case this argument fails in limine. In the alternative, because many of the legal principles relating to licences (which are simply personal contracts) and tenancies (which are interests in land) are different, it is unsurprising if the incidence of the statutory provision sometimes produced different results when applied to licences from what they produced when applied to tenancies.

In these circumstances, I have reached the conclusion that the argument advanced by the Council is correct: on the death of Mrs Hickin, the tenancy of the house vested in Mr Hickin by virtue of the doctrine of survivorship; Mr Hickin did not reside in the property, and consequently the tenancy ceased to be a secure tenancy; it was therefore effectively determined by the notice. In those circumstances, Miss Hickin was neither entitled to succeed to the tenancy nor remain in the house once the notice had expired.

It should be added that the Council are not seeking to render her homeless: they have offered her alternative accommodation, but, understandably, she would wish to remain in the house that has been her home for many decades.

At first instance, District Judge Hammersley concluded that the Council's argument was correct, but on appeal His Honour Judge Oliver-Jones QC took a different view, and accepted that Miss Hickin was the secure tenant of the flat. Mummery LJ rightly considered this was a case appropriate for a second appeal, and, as a result of reasoning set out above I would allow the Council's appeal, and restore the possession order made by the District Judge.

Lord Justice Laws:

I agree.

Lord Justice Sullivan:

I also agree.