We use cookies to improve our site and your experience. By continuing to browse on this website you accept the use of cookies. Read more...

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


Disclaimer

The information and any commentary on the law contained on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by any member of Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comments on this site. No responsibility is accepted for the content or accuracy of linked sites.


Download as PDF


Back to News