HOUSING — Secure tenancy — Death of tenant — Tenant’s son succeeding to tenancy but deliberately failing for three years to notify local authority of mother’s death — Local authority claiming possession with view to moving occupant to smaller property — Whether son estopped from asserting date of mother’s death to defeat local authority’s claim — Whether proprietory estoppel — Housing Act 1985, s 84, Sch 2, ground 16

Newport City Council v Charles; [2008] WLR (D) 245

CA: Laws, Longmore and Richards LJJ: 17 July 2008

A local authority’s right to possession against a person succeeding to a tenancy on the death of a family member other than a spouse on the ground that the accommodation was more than he reasonably required was not an interest in land capable of giving rise to a proprietory estoppel against the tenant. Accordingly, a tenant who concealed his mother’s death for three years in order to avoid being moved to a different property could not be ousted on that ground because the time limit for doing so had expired before the local authority discovered his mother had died.

The Court of Appeal so held allowing an appeal by Stuart Malcolm Charles from a decision on 22 January 2008 of Judge Milwyn Jarman QC in the Cardiff County Court dismissing his appeal against a possession order in favour of Newport City Council in respect of 1B Marlborough Road, Newport.

LAWS LJ said the defendant’s mother had been a local authority tenant and when she died in January 2003 he had feared that he would be moved to smaller accommodation. Acting deliberately and fraudulently, he had not registered her death or informed the local authority that she had died and had continued to pay the rent in her name. The local authority had discovered in 2006 that the defendant’s mother had died. Ground 16 in Schedule 2 to the Housing Act 1985 required the local authority, if it wished to move the tenant to different accommodation, to begin proceedings not less than six months or more than 12 months from the date of death. When they had learned three years later that their tenant had died, the local authority had claimed possession, asserting that because of his failure to notify them of the death, the defendant was estopped from asserting the true date of death to defeat the claim. The question was whether a proprietory estoppel arose which might found the action for recovery, since it was accepted that other forms of estoppel could be a shield but not a sword. The purpose and policy of ground 16 was that the housing authority should be entitled to recover family sized property but that it should do so neither too soon nor too long after the death. The doctrine of proprietory estoppel could not be said to apply in the circumstances, since the council’s interest as freeholder was not in question. It was raising a strictly statutory claim to possession. The defendant’s acts were estoppel by representation, and the council could not found a claim on it outside the time-limits laid down by the 1985 Act. This was unjust and frustrated the statutory purpose. It meant the house could not be used by a family who needed it. His Lordship hoped the legislature might find a way out.

LONGMORE LJ delivered a judgment concurring in the result.

RICHARDS LJ agreed with Laws LJ.

Appearances: Michael Barnes QC and John Beckley (HPJV Solicitors, Newport) for the defendant; Andrew Arden QC and Iain Wightwick (Newport City Council, Newport) for the local authority.

Reported by: John Spencer, barrister