Honeygan-Green v London Borough of Islington

Where a secure tenancy is revived retrospectively after a possession order is discharged or rescinded, the accrued stages of an established right-to-buy claim revive with the tenancy. Under Housing Act 1985 section 121, a possession order bars the tenant only from taking steps to exercise the right to buy while the order remains in force. It does not permanently extinguish steps already taken.

Accordingly, unless the court makes a contrary order, the tenant need not serve a fresh section 122 notice. A landlord’s statutory duty to grant the lease cannot be withheld on an unpleaded and unproved rent-arrears ground, or on an alleged uncertainty about the demise where its extent was in fact agreed or determined.

The appellant, a secure tenant, served a notice claiming the right to buy her flat. The respondent admitted the claim and fixed the price. A suspended possession order for rent arrears later took effect after missed payments, but the County Court discharged that order once the arrears had been paid.

In later possession proceedings the appellant counterclaimed for an injunction requiring the grant of the lease. Judge Marr-Johnson granted summary judgment. Nelson J allowed the landlord’s appeal, holding that the earlier right-to-buy process had not revived and, alternatively, that an injunction was unavailable under section 138.

The Court of Appeal considered whether the discharge of the possession order revived the stages already completed under Part V of the Housing Act 1985, and also resolved a related appeal about the correct destination of the landlord’s earlier appeal.

1. Both appeals were allowed unanimously. Keene LJ gave the principal judgment, with which Maurice Kay LJ and Pill LJ agreed.

2. The revival of a secure tenancy following a court order under section 85 is retrospective. The tenancy is treated as having continued through the intervening limbo period, together with both express and statutorily implied covenants. That conclusion followed the reasoning in Greenwich London Borough v Regan [1996] 28 HLR 469, as endorsed in Burrows v Brent London Borough Council [1996] 1 WLR 1448, and applied in Lambeth London Borough Council v Rogers [1999] 32 HLR 361.

3. Section 121(1) of the Housing Act 1985 prevents a tenant from taking a step to exercise the right to buy while a qualifying possession order exists. It does not erase the prior stages of the statutory process. Enfield London Borough Council v McKeon [1986] 1 WLR 1007 established that each such stage is an exercise of the right; it did not decide the effect of a later revival of the secure tenancy. The identical wording in section 121(2), including its application to a pending bankruptcy petition, reinforced that construction. A contrary construction would produce unjustifiably harsh consequences.

4. Once the possession order was discharged before execution, the appellant’s established claim and earlier valuation revived with the tenancy. She was not required to begin again with a fresh section 122 notice. Keene LJ considered that section 85(3)(b) might permit an appropriate condition affecting an existing claim, but this issue was unnecessary to decide. Pill LJ expressly reserved whether a condition could defeat the separate statutory right to buy.

5. The alternative section 138 ground failed. The landlord had not relied on section 138(2) before Nelson J and the factual issue of arrears had not been determined. The extent of the demise was also sufficiently identified. The landlord was therefore under the section 138(1) duty to grant the lease, enforceable by injunction.

6. On the procedural appeal, Judge Marr-Johnson was correcting his order to reflect his original intention that the appeal should go to the Court of Appeal. He had power under the Civil Procedure Rules 1998 to do so. Judge Birtles’s contrary decision was set aside.

• Court of Appeal (Civil Division): Allowed the substantive appeal from Nelson J and the procedural appeal from Sir Michael Wright: [2008] EWCA Civ 363.
• High Court: Nelson J had allowed the landlord’s appeal from the County Court, holding that the prior right-to-buy process did not revive and that no injunction should issue. That decision was reversed.
• High Court: Sir Michael Wright had made no order on the procedural appeal, treating it as academic after a direction that the substantive appeal be heard in the High Court. That approach was reversed.
• County Court: Judge Marr-Johnson granted the tenant summary judgment and an injunction requiring the grant of the lease, subject to rent arrears being paid. In separate procedural orders, he sought to correct the destination of the landlord’s appeal.