Burton v. Mayor etc of The London Borough of Camden

The House of Lords considered whether a deed of release executed by one joint secure tenant in favour of the other was effective to vest the tenancy in the survivor, given the statutory prohibition on assignment in section 91(1) of the Housing Act 1985. The majority held that the deed of release, although expressed as a release, had the effect of transferring the legal estate in the tenancy from two joint tenants to one and therefore fell within the concept of an assignment for the purposes of section 91(1) and was ineffective. The court therefore set aside the Court of Appeal's declaration that the respondent was the sole tenant. The court did not decide the separate question whether the departing joint tenant remained contractually liable for rent after an effective release because the release was held ineffective.

Background and parties:

Miss Susan Burton and Miss Jan Hannawin were joint secure tenants of a three-bedroom flat owned by Camden London Borough Council. After Miss Hannawin decided to leave, Miss Burton sought to become sole tenant so that her housing benefit would cover the full rent. The council would not transfer the tenancy to her and encouraged re-housing. Miss Burton and Miss Hannawin executed a deed of release purporting to vest Hannawin's interest in Burton as sole tenant.

Procedural history and relief sought:

• Miss Burton issued proceedings in the Central London County Court seeking a declaration that she was sole tenant and rectification of the council's rent account.
• Recorder Keane dismissed the claim.
• The Court of Appeal (Butler-Sloss LJ and Sir John Vinelott) reversed and declared Burton to be sole tenant.
• The council appealed to the House of Lords.

Issues framed:

• Whether the deed of release was effective to vest the secure tenancy solely in Miss Burton or whether it was in substance an assignment prohibited by section 91(1) of the Housing Act 1985.
• Assuming the deed was effective, whether Miss Hannawin remained liable for rent falling due after the deed.

Reasoning and outcome:

The majority (Lord Nicholls, with concurrences from Lords Browne-Wilkinson, Steyn and Hobhouse) analysed the statutory scheme of Part IV of the Housing Act 1985 and concluded that the transaction was, in substance, a transfer of the legal estate in the tenancy from two tenants to one and therefore amounted to an assignment within the meaning of section 91(1). The statutory prohibition on assignment (subject only to narrowly drawn exceptions) precluded the deed achieving its object, so the release was ineffective. Because of this conclusion, the House of Lords did not decide the contractual question whether a departing joint tenant would remain liable to the landlord for rent in the event of a valid release. Lord Millett dissented, concluding the release was effective and arguing that the statutory language should not be extended to cover a release of a joint tenant's interest to the co-tenant.

Wider context: The majority emphasised that Part IV is concerned with security of tenure and that issues such as housing benefit and under-occupation are for separate statutory or regulatory solutions rather than reinterpretation of the security provisions.

Appeal allowed. The majority held that the deed of release was, in substance, a transfer vesting the tenancy in one co-tenant alone and therefore was caught by the prohibition on assignment in section 91(1) of the Housing Act 1985; the deed was ineffective to vest the tenancy solely in Miss Burton and the Court of Appeal's declaration was set aside.

Central London County Court (Recorder Keane) — application dismissed; Court of Appeal (Butler-Sloss LJ and Sir John Vinelott) — declared Miss Burton to be sole tenant; House of Lords [2000] UKHL 8 — appeal allowed and order of Recorder Keane restored.