HOUSING — Secure tenancy — Right to buy — Defendant’s application to exercise right to buy admitted by local authority — Claimant’s secure tenancy terminated by possession order for failure to pay rent — Tenancy later revived — Whether original application to exercise right to buy also revived — Housing Act 1985, ss 121, 138

London Borough of Islington v Honeygan-Green

QBD: Nelson J: 25 May 2007

Where the determination of a secure tenancy by the granting of a possession order had brought to an end an existing application under the Housing Act 1985 which had established the right to buy at a particular time and a particular price, that application was not capable of being revived once the tenancy itself had been revived.

Nelson J so held in the Queen’s Bench Division in a reserved judgment when allowing the council’s appeal against the decision of HHJ Marr-Johnson of 28 April 2006 granting Manelva Honeygan-Green an injunction ordering the council to convey to her the long lease of the council property of which she was a tenant. Further to the council’s admission under s 124 of the Housing Act 1985 of her application to purchase her property, Mrs Honeygan-Green’s secure tenancy was terminated because of rent arrears and she became a tolerated trespasser. The arrears having been cleared, the secure tenancy was later revived.

NELSON J said that the central issue between the parties was what was the effect of the tenancy being revived. It was accepted that the right to buy still existed, but did the original application survive the possession order and determination of the tenancy, or was it abrogated so that the tenant must make a fresh application under s 122 of the 1985 Act and hence lose an earlier favourable valuation? At the time of Mrs Honeygan-Green’s application for an injunction she had failed to pay the rent due from her as a tenant under her revived tenancy for a period of longer than four weeks after it had been lawfully demanded from her. Under s 138(2) until the whole of that payment had been made the landlord was not bound to comply with s 138(1) and was not therefore under a duty to grant the lease; hence that duty could not be enforceable by injunction at that stage. S 121 of the 1985 Act laid down certain circumstances in which the right to buy could not be exercised or ceased to be exercisable. The right to buy could only be exercised through a particular application and if the right to buy fell, so did that application. The effect of s 121 was to cause any existing claim to exercise the right to buy in relation to the dwelling house to cease to be effective. The revival of the tenancy did not revive the earlier application which had established the right to buy the property. The key to the interpretation of s 121 was that the right to buy was only exercisable through an application or claim under the statutory scheme. If the right to buy could not be exercised or ceased to be exercisable, then the application or claim which established that right to buy must also cease to be exercisable.

Appearances: Iain Colville (instructed by London Borough of Islington Director of Law and Public Services) for the council; Adrian Jack (instructed by Wilson Barca) for Mrs Honeygan-Green.

Reported by: Elanor Dymott, solicitor