Kensington & Chelsea v Hislop

A tenant’s right to buy does not automatically prevail over a landlord’s claim for possession. The right to buy remains exercisable through a sequence of statutory steps and does not deprive the landlord of its ordinary rights before completion.

Where possession depends on reasonableness under the Housing Act 1985, the court must consider the right-to-buy position alongside all other relevant circumstances. Relevant factors may include the tenant’s length of occupation, the genuineness of the claim, the landlord’s housing needs, any tenancy breaches, and deliberate failure by the landlord to perform statutory duties. Reasonableness must be assessed separately from the suitability of alternative accommodation.

The Royal Borough of Kensington & Chelsea sought possession of a secure tenancy under Ground 16 of Schedule 2 to the Housing Act 1985, alleging under-occupation and offering alternative accommodation. The tenant had succeeded to the tenancy and had claimed the right to buy. The Borough admitted that right but deliberately failed to serve the statutory notice specifying the purchase price and proposed terms.

The County Court dismissed the possession claim, finding that it would be unreasonable to make an order. The Borough appealed, challenging the weight given to its failure to process the right-to-buy application, the suitability of the alternative accommodation, and related evidential findings. The central issue was whether the County Court had erred in its assessment of reasonableness.

1. The appeal was dismissed. The County Court had not erred in law by treating the Borough’s deliberate failure to process the tenant’s right-to-buy application as a significant factor in assessing reasonableness.
2. A right to buy is not completed when the tenant serves a notice under section 122. It proceeds through successive statutory steps until conveyance or grant of the lease. Pending completion, the landlord retains its ordinary rights, including the right to seek possession: London Borough of Enfield v McKeon [1986] 18 HLR 320 CA.
3. The right to buy is not an automatic priority or decisive answer to a possession claim. The court must balance the competing claims. An order for possession may prevent the right to buy from being exercised under section 121, but the tenant has no right to insist that the right-to-buy claim be determined first.
4. Where possession and right-to-buy proceedings conflict, the court has a judicial procedural or administrative discretion as to the order in which they should be determined. That discretion must be exercised judicially and must not be used to defeat the statutory policy or the tenant’s rights: Bristol City Council v Lovell [1998] 1 WLR 446 HL.
5. For the substantive assessment under section 84(2)(c), relevant factors may include long occupation, disruption caused by moving, compliance with the tenancy, the genuineness and viability of the right-to-buy claim, deliberate failure by the landlord to perform statutory duties, the landlord’s housing needs, persistent or serious tenancy breaches, possible depletion of housing stock, and the risk that possession proceedings are being used to impede the right to buy.
6. Reasonableness and the suitability of alternative accommodation are separate questions. Evidence that the offered accommodation was unaffordable could defeat the possession claim on suitability, but it did not determine the separate question of reasonableness.
7. The court should not ask whether possession would have been ordered without the right to buy, or whether the right to buy would have proceeded without the possession claim. Those approaches would create an unwarranted burden of proof.
8. The County Court was entitled to find that the offered two-bedroom accommodation was unsuitable because of the substantial increase in per-person housing costs. The remaining grounds of appeal were unsupported by evidence or could not affect the result once the Borough failed on reasonableness.

• High Court (Chancery Division): appeal from the Central London County Court dismissed. The decision of His Honour Judge Knight Q.C. was upheld.