Bhai & Anor v Black Roof Community Housing Association Ltd

The statutory code governing secure tenancies has an ambulatory effect: a tenancy may become secure when the statutory landlord and tenant conditions are later satisfied. Schedule 18 paragraph 4(c) to the Housing Act 1988 preserved the effect of the unamended section 80 list for a tenancy which remained a housing association tenancy within Part VI of the Rent Act 1977. Accordingly, an existing tenancy granted by a fully mutual housing association became secure when the association later became non-mutual.

The appellants were tenants of a flat under a periodic tenancy granted in 1985 by a fully mutual housing association. The association became non-mutual in about December 1991. The tenants claimed a statutory right to buy under Part V of the Housing Act 1985, which depended on their tenancy being secure.

An arbitrator held that the tenancy was assured and that there was no right to buy. On an appeal under section 69 of the Arbitration Act 1996, the county court judge held that it was not secure and dismissed the appeal. The central issue in the Court of Appeal was the effect of paragraph 4(c) of Schedule 18 to the Housing Act 1988.

1. Appeal allowed. The county court orders were set aside, the arbitrator’s award was varied, and the appellants were declared secure tenants within Part IV of the Housing Act 1985.
2. Section 79(1) of the Housing Act 1985 gives the secure-tenancy code an ambulatory effect. A tenancy may pass into or out of secure-tenancy status as the landlord and tenant conditions are satisfied or cease to be satisfied.
3. Paragraph 4(a) of Schedule 18 to the Housing Act 1988 preserves the unamended section 80 landlord condition for existing tenancies which were secure immediately before the relevant repeals and whose landlords were removed from the section 80 list. That saving did not assist these appellants because their landlord was then a fully mutual association and the landlord condition was not satisfied.
4. Paragraph 4(c), however, had a different effect. “Housing association tenancy” was to be understood by reference to Part VI of the Rent Act 1977, as reinforced by section 35(1) and section 35(5) of the Housing Act 1988. The repeals therefore did not apply while the tenancy remained within that definition.
5. During that period the relevant section 80 list was the unamended list, which included a non-mutual association. When the association changed status, the landlord condition was satisfied and the tenancy became secure. Article 1 of the First Protocol to the European Convention on Human Rights did not arise, and reference to Hansard under Pepper v Hart was unnecessary.

The respondent was ordered to pay the appellants’ costs in the Court of Appeal and below.

• Court of Appeal (Civil Division): allowed the appeal, set aside the county court orders, varied the arbitrator’s award and declared the appellants secure tenants.
• Central London County Court: on an appeal under section 69 of the Arbitration Act 1996, dismissed the tenants’ appeal from the arbitrator’s decision.
• Arbitration: the arbitrator held that the tenancy was assured rather than secure and that the appellants had no right to buy.