Walker v Birmingham City Council

The statutory limit of one succession to a secure tenancy applies only to a succession occurring under a secure tenancy. A spouse who became sole contractual tenant by survivorship before secure tenancies existed is not thereby a successor for the purposes of sections 87–89 of the Housing Act 1985. The tenancy later became secure when the Housing Act 1980 came into force, but the earlier survivorship did not exhaust the statutory succession. Retrospective effect cannot be inferred from general language, particularly where Parliament enacted express retrospective provisions elsewhere. A qualifying family member may therefore succeed on the secure tenant’s death, subject to the statutory conditions.

This was a second appeal from possession proceedings in the Birmingham County Court. The Council sought possession after Betty Walker, the sole tenant, died in 2004. She and her husband had held a periodic joint contractual tenancy from 1965. After her husband died in 1969, she became sole tenant by survivorship. The tenancy became secure when Chapter II of Part I of the Housing Act 1980 came into force on 3 October 1980.

The Council argued that the 1969 survivorship made Mrs Walker a successor under section 88 of the Housing Act 1985, preventing her son from succeeding. A deputy district judge decided the preliminary issue for the Council, and HHJ Hamilton dismissed Mr Walker’s appeal. The central issue was whether the earlier survivorship was a succession under a secure tenancy.

Appeal allowed. Mummery LJ gave the judgment, with Rix LJ and Peter Smith J agreeing.

1. Statutory scheme. Sections 87–89 of the Housing Act 1985 confer a limited right to succeed to a secure tenancy. The qualifying conditions were prima facie satisfied because Mr Walker occupied the property as his only or principal home and had lived there for the required period as a member of the tenant’s family.
2. Meaning of successor. The expression successor in section 88 refers to a person who succeeded under the secure tenancy mentioned in section 87. Section 88(1)(b) therefore concerns a person who was joint tenant of that secure tenancy and became sole tenant. It does not include a person who became sole contractual tenant by survivorship before secure tenancies existed.
3. Application to the facts. Mrs Walker became sole tenant in 1969 by the inherent operation of the joint tenancy. There was no statutory succession and no secure tenancy to which she could have succeeded. She became a secure tenant only on 3 October 1980, when the 1980 Act applied to her existing tenancy under section 47. The earlier survivorship consequently did not make her a successor under sections 87 and 88.
4. Retrospectivity. Part IV of the Housing Act 1985 contained no express provision retrospectively treating the earlier joint tenancy or survivorship as a secure-tenancy succession. Express retrospective provisions elsewhere, including section 27(3) of the Housing Act 1980 and section 185(1) of the 1985 Act, did not extend to the succession provisions. The general continuity and transitional provisions did not alter that conclusion.
5. The court found support in the statutory language and in the observations in Bassetlaw DC v. Renshaw [1992] 1 All ER 925. The agreement recorded in London Borough of Harrow v. Tonge [1992] 25 HLR 99 that a 1976 succession had occurred was based on a misunderstanding and could not assist. It was unnecessary to decide the arguments under Articles 8 and 14 of the Convention or section 3 of the Human Rights Act 1998.

1. Court of Appeal (Civil Division) — On 22 June 2006, allowed the second appeal on the construction of the succession provisions.
2. Birmingham County Court — DDJ Fowler decided the preliminary issue for the Council on 29 March 2005. HHJ Hamilton dismissed Mr Walker’s appeal on 28 November 2005. Permission for a second appeal was later granted by Neuberger LJ.