John Howe v Brent London Borough Council

Under Part V of the Housing Act 1985, a secure tenant’s right to buy arises from qualifying status and occupation. The statutory notices and any later admission or declaration establish and enforce an existing right; they do not create or perfect it.

A family member validly required to share the right is treated as a joint secure tenant from service of the notice, provided the statutory conditions existed then. If the original tenant later dies, the surviving deemed tenant may establish and enforce the shared right under the original notice, without serving a fresh notice, provided they remain in occupation until completion.

Mrs Laura Howe, a secure tenant, served a notice claiming the right to buy her council house jointly with her adult son, John Howe. The Council admitted her right but disputed her son’s qualification under section 123 of the Housing Act 1985. Mrs Howe died before the Council accepted or the County Court established her son’s qualification.

The County Court found that he had satisfied the residence requirement when the notice was served and held that he could continue the right to buy claim. The Council appealed, arguing that his shared right arose only when accepted by the landlord or established by the court. The central issue was whether the son could exercise the shared right after his mother’s death but before his entitlement had been established.

1. Appeal dismissed. Lady Justice Andrews gave the leading judgment. Lord Justice Zacaroli and Lord Justice Lewison agreed.
2. Under Part V of the Housing Act 1985, the secure tenant’s right to buy arises from statutory status, qualifying occupation and the applicable qualifying period. Sections 122 onwards govern the exercise and enforcement of that existing right. Establishment by landlord admission or court declaration means that the right has been agreed or proved. It does not create, perfect or crystallise the right. The reasoning in Southwark London Borough Council v Francis [2011] EWCA Civ 1418 supported that analysis.
3. The right cannot be enforced so as to require conveyance until it has been established and the statutory procedure has been followed. That procedural requirement did not support the Council’s argument that a family member’s right was inchoate until establishment. Copping v Surrey County Council [2005] EWCA Civ 1604; [2006] HLR 16 was concerned with an abandoned earlier claim and did not decide the operation of section 123(3).
4. Section 123(3) has two immediate and distinct consequences where a notice validly requires a qualifying family member to share the right: the right belongs to them jointly, and they are treated as joint secure tenants for Part V. The requirements in section 123(1) and (2) are assessed when the section 122 notice is given. Later proof of those facts does not alter the timing. London Borough of Harrow v Tonge (1993) 25 HLR 99 applied equally despite the fact that the landlord had accepted the family member’s claim in that case before the tenant died.
5. Mrs Howe’s death therefore left Mr Howe as the sole surviving deemed secure tenant. He could establish and enforce the shared right under the original notice without serving a fresh notice. Provided he continued to occupy the property as his sole or main home until completion, the landlord had to follow the remaining statutory process, including serving a section 125 notice. Section 136(6) did not postpone the operation of section 123(3). The Court expressed no view on the different situation where the original tenant leaves or loses the right to buy.

• Court of Appeal (Civil Division): Brent London Borough Council appealed, with permission, against the decision of Deputy District Judge Watterson in the County Court at Willesden. The appeal was referred under the Civil Procedure Rules 1998, rule 52.23(a). The appeal was dismissed.