HOUSING — Secure tenancy — Death of tenant — Local authority’s grant of periodic tenancy to husband and wife as joint tenants — Wife sole tenant by survivorship following husband’s death and becoming secure tenant after statutory enactment of secure tenancies — Whether wife successor to secure tenancy — Whether son entitled to succeed — Housing Act 1985, s 88(1) (as amended by Housing Act 1996, s 141(1), Sch 14, para 1)

Birmingham City Council v Walker: [2007] UKHL 22

HL: Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe and Lord Mance: 16 May 2007

A joint tenant of council property who became, by survivorship, the sole tenant, before becoming a secure tenant when such tenancies were created in 1980, was not herself “a successor” within the meaning of section 88(1) of the Housing Act 1985 so as to prevent further succession under that Act.

The House of Lords so held when dismissing an appeal by Birmingham City Council from the Court of Appeal [2006] 1 WLR 2641 which had allowed an appeal by the defendant, Paul Walker, from Judge Hamilton, sitting at Birmingham County Court, who, in 28 November 2005 upheld the deputy district judge’s ruling, on a preliminary issue in possession proceedings brought by the council, that the defendant’s mother, following her husband’s death, was a successor to their joint tenancy so that no further statutory succession was permissible.

LORD HOFFMANN said that, since the policy of the 1980 and 1985 Acts was to permit only one succession to a secure tenancy and since a secure tenancy was an estate in land which could, in principle, be transmitted in any way permissible at common law, s 88(1) defined the events by which the tenant himself might be a “successor”by including the various common law methods for the passing of a leasehold interest so as to close loopholes in the single succession rule and prevent its avoidance. The events to which s 88(1) referred were therefore those in relation only to tenancies which had become secure tenancies. That construction was supported by the general presumption against retrospectivity and by the absence of any purpose in giving the definitions retrospective effect; furthermore the word “successor” in its ordinary sense most naturally meant successor to a secure tenancy. Since the defendant’s mother had become the sole tenant when the tenancy was not a secure tenancy she was not a successor within the meaning of the section.

LORD HOPE, LORD SCOTT, LORD WALKER and LORD MANCE agreed

Appearances: Ashley Underwood QC and Catherine Rowlands (Birmingham City Council) for the council; Jan Luba QC and John Beckley (Aston Law Centre, Birmingham) for the defendant.

Reported by: Diana Procter, barrister