Clore v Macnicol

Where competing family members claim succession to a statutory tenant’s assured tenancy, no assured tenancy by succession exists until the successor is identified under Part 1 of Schedule 1 to the Rent Act 1977. A claimant cannot therefore assign an existing tenancy before that determination. A letter by one claimant relinquishing all rights in favour of another may constitute surrender of the claim to succession, rather than assignment of an assured periodic tenancy. The court should prefer a construction that fits the statutory scheme, including the restriction in section 15 of the Housing Act 1988 on assignment of such periodic tenancies, over one that assumes an existing tenancy and an immediate breach of that restriction.

This was an appeal from an order made by HHJ Hallgarten QC in the Central London County Court on 19 December 2003 in possession proceedings concerning a dwelling house. After the death of the appellant’s mother, both the appellant and her brother claimed to qualify for succession to the tenancy under the Rent Act 1977. The brother later wrote to the landlords stating that he gave up all rights to the tenancy so that his sister could remain in the property.

The appellant contended that the letter assigned an assured periodic tenancy already vested in her brother. The landlord argued that it surrendered his succession claim and that the appellant later became an assured shorthold tenant. The central issue was the legal effect of the letter.

1. Appeal dismissed. Lord Justice Chadwick gave the leading judgment. Lord Justice Wall and Lord Justice Brooke agreed.
2. The statutory scheme provided that, on the death of a statutory tenant, a qualifying family member residing with the tenant for the required period became entitled to an assured tenancy by succession under section 2(1)(b) and paragraph 3 of Part 1 of Schedule 1 to the Rent Act 1977, as amended by the Housing Act 1988. Where more than one person qualified, the successor was to be chosen by agreement or, failing agreement, by the county court. The scheme did not permit a joint tenancy to be acquired.
3. Under sections 39(5) and 39(6) of the Housing Act 1988, the successor’s tenancy was an assured periodic tenancy taking effect immediately after the statutory tenant’s death and on the same terms as the previous statutory tenancy. Section 15 imposed an implied restriction against assignment, subletting or parting with possession without the landlord’s consent.
4. The brother’s letter had to be construed against the background that both siblings were claiming succession rights. It was addressed to the landlord rather than the supposed assignee, and its reference to giving up all rights to the tenancy was consistent with relinquishing his claim to succession. It was not an assignment of an existing assured tenancy.
5. Construing the letter as an assignment would require the court to assume both that the brother alone was entitled to the tenancy and that he was assigning it in breach of section 15. The construction which fitted the statutory framework was therefore preferred. The appellant did not acquire an assured tenancy by assignment. The later assured shorthold tenancy was accordingly effective, and the possession order was rightly made. The court expressed no view on whether an assignment of an assured periodic tenancy would have to be by deed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the possession order and the conclusion that the letter did not assign an assured periodic tenancy: [2004] EWCA Civ 1055.
2. Central London County Court: HHJ Hallgarten QC made the possession order on 19 December 2003.