London Borough of Newham v Ria & Anor

On the statutory succession of a minor to a secure tenancy, the statutory scheme and the ordinary rules of succession operate together. The statutory succession provisions do not displace or suspend the common law rules. Where a will provides an adult trustee or recipient of the legal estate, that legal estate vests in the person appointed, while the minor holds the equitable interest. The legal estate is not vested in the landlord and is not suspended until the minor reaches majority. The Trusts of Land and Appointment of Trustees Act 1996 confirms this analysis.

A secure tenancy was granted to Khaleda Fancy Khanam, who later died while living at the premises with her minor daughter, Sharmin Ria. The daughter was the only person qualified to succeed under section 87 of the Housing Act 1985. The deceased’s will appointed her sister, Masuda Hossain, as executrix and trustee and provided for the estate to be held for the daughter.

The Bow County Court declared that the daughter succeeded in equity under section 89 of the Housing Act 1985 and that the legal tenancy vested in Mrs Hossain as trustee. The daughter appealed. The appeal was transferred to the Court of Appeal because it was said to raise an important point of principle concerning a minor’s succession to a secure tenancy. The central issue was whether the legal estate vested in the Council, was suspended, or vested in Mrs Hossain.

1. Appeal dismissed. The county court’s declarations were affirmed, with costs. Permission to appeal was refused. The question of the extent of the first defendant’s liability for costs was adjourned generally, and detailed assessment of her costs was directed.
2. The statutory succession scheme in Part IV of the Housing Act 1985 is complementary to the ordinary rules of succession. It does not displace or suspend them. The daughter therefore acquired the equitable tenancy as the person qualified to succeed, but the legal estate followed the will and vested in Mrs Hossain.
3. The proposed alternative that the legal estate vested in the Council was rejected. A landlord should not ordinarily be treated as trustee of a tenancy for the tenant’s benefit without express provision. The suggestion that the legal estate was suspended or in limbo until the daughter attained majority was also rejected.
4. The conclusion was reinforced by paragraph 2 of Schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996. Read with section 23(2) of that Act and the incorporated definitions in section 205(1)(ii) of the Law of Property Act 1925, paragraph 2 covers a legal estate which would otherwise vest in a minor, including a disposition by will. The land is consequently held on trust for the minor.
5. The court observed that the proceedings and appeal had produced substantial expenditure without practical necessity. Once the county court had decided the legal position, the parties could have approached the Housing Benefits Agency. That observation did not alter the formal disposition.

• Court of Appeal (Civil Division) [2004] EWCA Civ 41: dismissed the appeal with costs and affirmed the county court’s declarations.
• Bow County Court: on 31 March 2003, His Honour Judge Marr-Johnson declared that Sharmin Ria succeeded in equity to the tenancy under section 89 of the Housing Act 1985 and that Masuda Hossain held the legal tenancy as trustee.