Solihull Metropolitan Borough Council v Hickin

Where a secure tenancy is held jointly, the death of one joint tenant ordinarily leaves the tenancy vested in the surviving joint tenant by survivorship. The statutory succession provisions in Part IV of the Housing Act 1985 are engaged by the death of the tenant; they do not transfer the tenancy to a family member merely because one joint tenant has died. Section 88(1)(b) confirms that the statutory scheme contemplates a joint tenant becoming sole tenant. If the survivor does not occupy as their only or principal home, the tenancy ceases to be secure, so a resident child cannot succeed under sections 87 to 89. An interpretation producing a favourable result in one case carries little weight if it would create capricious outcomes in other cases.

The Council had granted Sylvia and Raymond Hickin a weekly joint tenancy. Their daughter, Elaine, lived in the house with them. Raymond later left but remained a joint tenant. After Sylvia died, the Council served notice to quit on Raymond and brought possession proceedings against Elaine.

The District Judge accepted the Council’s case. On appeal, His Honour Judge Oliver-Jones QC held that Elaine had succeeded to the secure tenancy. The Court of Appeal heard the Council’s second appeal. The central issue was whether the death of one joint tenant triggered succession under Part IV of the Housing Act 1985, or whether the tenancy passed to the surviving joint tenant by survivorship.

1. Appeal allowed. The Court of Appeal unanimously allowed the Council’s appeal and restored the possession order made by the District Judge.
2. Survivorship and succession. At common law, the death of one joint tenant leaves the tenancy vested in the survivor. The statutory succession provisions must be read in their wider statutory context. Section 87 is the governing provision and refers to the death of the tenant. Here, Raymond remained a joint tenant when Sylvia died. The tenant had therefore not died; one person comprising the joint tenancy had died. Section 88(1)(b) specifically contemplates a joint tenant becoming sole tenant, supporting the application of survivorship. The reasoning was consistent with Birmingham City Council v Walker [2007] UKHL 22; [2007] 2 AC 262, para 5, and with the distinction there drawn between secure tenancies as estates in land and statutory tenancies as personal rights of occupation, referring to Carter v SU Carburetter Co [1942] 2 KB 288.
3. Construction and consequences. The Court distinguished Lloyd v Sadler [1978] 1 QB 774 because the Rent Acts lacked the express provisions concerning joint tenancies found in the 1985 Act. The attractive result for the resident daughter in this case could not justify an interpretation capable of divesting an existing secure tenant in other cases and producing capricious results.
4. Loss of security. After Sylvia’s death, Raymond became sole tenant but did not occupy the house as his only or principal home. The tenant condition in section 81(1) was therefore no longer satisfied, so the tenancy ceased to be secure and was effectively determined by the notice. Elaine was neither entitled to succeed nor entitled to remain after the notice expired. The argument based on section 79(3), concerning licences, did not alter that conclusion because licences and tenancies may produce different results under the statutory regime.

• Court of Appeal (Civil Division): allowed the Council’s appeal and restored the possession order. [2010] EWCA Civ 868
• Birmingham County Court: His Honour Judge Oliver-Jones QC allowed Elaine Hickin’s appeal and held that she was the secure tenant.
• District Judge: District Judge Hammersley accepted the Council’s argument and made a possession order.