Solihull Metropolitan Borough Council v Hickin

When one of several joint secure tenants dies, the tenancy remains vested in the surviving joint tenant by survivorship. There is no transmission of title. Section 89 of the Housing Act 1985 therefore applies only when no joint tenant survives and a vacancy in the tenancy has arisen.

If the survivor does not occupy the dwelling as an only or principal home, the tenant condition is no longer satisfied and the tenancy ceases to be secure. Subject to termination and any statutory bar, its secure status may revive if the survivor resumes occupation. The statutory succession scheme modifies the common law only to the extent expressed or necessarily implied.

Mr and Mrs Hickin held a periodic secure tenancy jointly. Mrs Hickin remained in the house with their daughter after her husband left. When Mrs Hickin died, the council treated Mr Hickin as the sole tenant by survivorship. Because he was not occupying the house, it served notice to quit and sought possession against the daughter.

The trial judge ordered possession. HHJ Oliver-Jones QC allowed the daughter’s appeal, but the Court of Appeal restored the possession order in [2010] EWCA Civ 868. The daughter appealed to the Supreme Court.

The central issue was whether section 89 of the Housing Act 1985 displaced the surviving joint tenant’s common-law rights and vested the tenancy in a resident family member qualified under section 87.

1. By a majority, the appeal was dismissed. Lord Sumption delivered the leading judgment, with which Lord Walker agreed. Lord Hope agreed and gave additional reasons. Lord Mance and Lord Clarke dissented.

2. A secure tenancy remains an estate in land governed by the general law except where the Housing Act 1985 modifies that law. Under a joint tenancy there is one tenant composed of two or more persons. When one joint tenant dies, that person’s interest is extinguished and the survivor continues as tenant. There is no transmission of the tenancy: paras 6–8, 18.

3. The words “where a secure tenant dies” in section 89(1) concern the death of the tenant, rather than the death of one person composing a joint tenant. Section 89 governs transmission to a new tenant and operates only when no tenant remains. A surviving joint tenant’s title is therefore consistent with section 89 because it arises by continuation, not succession: paras 10–12, 25.

4. On Mrs Hickin’s death, Mr Hickin became the sole tenant by survivorship. His absence meant that the tenant condition in section 81 was no longer satisfied, so the tenancy ceased for the time being to be secure. The tenancy itself nevertheless continued. Under section 79(1), its secure status could have revived had he resumed occupation before termination by notice to quit. Section 89(4) did not prevent revival because the tenancy had not ceased to be secure by virtue of section 89: paras 8, 19.

5. Section 88(1)(b) treats a former joint tenant who becomes sole tenant as a successor for the purpose of preventing a further statutory succession. It recognises the survivor’s continued tenancy; it does not create a competing right in a resident family member or displace survivorship: paras 13, 24.

6. Clear statutory language is required to remove vested proprietary and contractual rights without compensation. Section 89 contained no unequivocal language expropriating a surviving joint tenant’s interest. Possible anomalies under either construction could not replace principled statutory interpretation: paras 14–15.

7. Lord Mance and Lord Clarke would have allowed the appeal. In their view, section 89 applies when an individual joint secure tenant dies. Where the survivor is not in occupation, the secure tenancy cannot continue in that survivor and vests automatically in a qualified resident successor. The majority rejected that construction: paras 47–48, 56, 60–63.

1. Supreme Court: By a majority, dismissed the daughter’s appeal and upheld the possession order: [2012] UKSC 39.

2. Court of Appeal: Allowed the council’s appeal and restored the Deputy District Judge’s possession order: [2010] EWCA Civ 868.

3. County court appeal: HHJ Oliver-Jones QC allowed the daughter’s appeal and declared that the tenancy had vested in her.

4. County court: Deputy District Judge Hammersley rejected the daughter’s statutory-succession case and ordered possession.