Islington v Honeygan-Green (Honeygan)

Under the Housing Act 1985, a right to buy is exercisable only through the particular statutory claim by which it was established. Where a secure tenant becomes obliged to give up possession under a possession order, the existing claim ceases to be exercisable under section 121(1). A later retrospective revival of the tenancy does not revive that claim. The tenant must make a fresh application.

Separately, the landlord is not obliged to grant the lease while rent remains outstanding under section 138(2), or while matters relating to the grant remain undetermined. An injunction enforcing the statutory duty is therefore premature in those circumstances.

The tenant had made a right-to-buy application in 2000, which the local authority admitted and valued at £175,000, subject to a £38,000 discount. Before completion, the tenant breached a suspended possession order made for rent arrears. Her secure tenancy consequently ended, and she became a tolerated trespasser.

The possession order was later discharged, retrospectively reviving the secure tenancy. The County Court granted the tenant an injunction requiring conveyance in accordance with the 2000 application. The local authority appealed, arguing that the application had ceased to be exercisable when the possession order took effect and could not be revived with the tenancy. The central issue was whether revival of the tenancy also revived the existing right-to-buy application.

1. Appeal allowed. The injunction was inappropriate both because the statutory conditions for the landlord’s duty had not been satisfied and because the 2000 right-to-buy application had ceased to be exercisable.
2. Under section 82(2) of the Housing Act 1985, a secure tenancy ends on the date specified in a possession order when the tenant is required to give up possession, even where the order is suspended. Under section 85(2), the court may later discharge or vary the order and thereby retrospectively revive the tenancy, as explained in Burrows v Brent LBC [1996] 1 WLR 1448.
3. Section 121(1) prevents the right to buy being exercised where the tenant is obliged to give up possession under a court order. The right which ceases to be exercisable is the right established by the particular application. Revival of the tenancy therefore revives the statutory right in general, but not the extinguished application or its valuation.
4. The same interpretation applies to the circumstances in section 121(2). A pending bankruptcy petition, undischarged bankruptcy, or unfulfilled arrangement with creditors prevents the right to buy being exercised. Once the relevant impediment ends, the right may be exercised again, but an earlier application does not revive. Section 121A(5), although enacted later and not applicable directly, confirms this construction.
5. The conclusion was consistent with Enfield London Borough Council v McKeon [1986] 1 WLR 1007 and Bristol City Council v Lovell [1988] 1 AER 775. The tenant acquired no proprietary interest before the grant of the lease.
6. Independently, section 138(2) meant that the landlord was not bound to grant the lease while rent remained outstanding for more than four weeks after lawful demand. In addition, the area to be demised had not been determined, so not all matters relating to the grant had been agreed or determined.
7. Remaining factual issues, including the alleged agreement to adjourn the possession proceedings and its possible effect, were remitted to the County Court for further consideration. Costs were reserved for argument.

1. High Court (Queen’s Bench Division): appeal from the decision of HHJ Marr-Johnson dated 28 April 2006. Appeal allowed and remaining issues remitted to the County Court.
2. Clerkenwell & Shoreditch County Court sitting at the Mayor’s and City of London County Court: summary judgment granted to the tenant on her counterclaim, with an injunction requiring conveyance in accordance with the 2000 right-to-buy application.