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Survivorship and joint secure tenancies: Solihull MDC v Hickin [2012] UKSC 39

When a joint tenant dies, the tenancy vests in the survivor(s). So far, so “law school”. What if the joint tenancy is secure under the Housing Act 1985 (“HA85”)?

Thus debated the Supreme Court recently in Solihull. Mr and Mrs H were joint secure tenants. Their daughter, EH, lived with them. Mr H left. Mrs H died. EH claimed to succeed. Under s 89, where “a secure tenant dies” and the tenancy is periodic, statutory machinery vests the tenancy in a qualified person. EH “qualified” under s 87 (she would not under the amendments introduced by the Localism Act 2011 for tenancies granted from 1 April 2012 unless there were express provisions in the tenancy). She argued that “a secure tenant” meant any such tenant, and the vesting machinery therefore operated and overrode her absent father’s interest. 

Their Lordships weren’t persuaded, but only by 3-2. Lord Sumption led the majority, observing that the common law could only be excluded by HA85’s language or purpose. The use of the indefinite article was not sufficient (there was only “one tenant”, even if more than one individual). Provision for vesting was unnecessary unless death left “a vacancy”. Though transmission on death had to be consistent with s 89, nothing transmitted to Mr H on Mrs H’s death; he retained the rights he always had. 

Lords Mance and Clarke dissented. Lord Mance believed “a secure tenant” contemplated an individual tenant. He thought it likely any apparent problems arising if the phrase included an individual joint tenant (eg, the child of one of two unrelated “just friends” joint tenants ousting the other on their parent’s death) dissipated or were marginal in the light of practical realities. EH’s case more closely reflected the “protective purpose” of HA85. 

However, Lord Mance saw no reason for s 89 to override the common law where the latter would “secure the continued existence of the secure tenancy”, ie, where the surviving joint tenant was in sufficient occupation (the situation contemplated by s 88(1)(b) in his view, citing Bassetlaw DC v Renshaw [1992] 1 All ER 925 and Birmingham CC v Walker [2007] UKHL 22). He and Lord Clarke suggested Parliament consider extending protection to someone in EH’s position.

/ 1st Oct 2012


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