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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Solihull Metropolitan Borough Council v Hickin  EWCA Civ 868 (27 July 2010)
Cite as:  1 WLR 2254,  HLR 45,  2 EGLR 147,  WLR 2254,  31 EG 62,  PTSR 103.,  EWCA Civ 868,  PTSR 103
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ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
His Honour Judge Oliver-Jones QC
Appeal Ref: 9/0161A
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE SULLIVAN
Solihull Metropolitan Borough Council
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Nicholas Nicol (instructed by Evans Derry Binnion) for the Respondent
Hearing date : 13th July 2010
Crown Copyright ©
Master of the Rolls:
"(1) A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied.
(3) The provisions of this Part apply in relation to a licence to occupy a dwelling-house (whether or not granted for a consideration) as they apply in relation to a tenancy. …."
"The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home."
Section 82 provides for "security of tenure", and its effect is to preclude a landlord obtaining possession of premises let on a secure tenancy save on specified grounds.
"A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and either—
(a)he is the tenant's spouse or civil partner , or
(b)he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death;
unless, in either case, the tenant was himself a successor, as defined in section 88."
Section 88, so far as relevant, provides as follows:
"(1)The tenant is himself a successor if—
(a)the tenancy vested in him by virtue of section 89 (succession to a periodic tenancy), or
(b)he was a joint tenant and has become the sole tenant …."
(1)This section applies where a secure tenant dies and the tenancy is a periodic tenancy.
(2)Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules—
(a)the tenant's spouse or civil partner is to be preferred to another member of the tenant's family;
(b)of two or more other members of the tenant's family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord."
Section 90 is a somewhat similar provision relating to a fixed term tenancy. Section 113 identifies what is meant by "Members of a person's family".
i) Section 89 (1) is engaged, because Mrs Hickin was "a secure tenant" who died, and the tenancy in question was a periodic tenancy;
ii) Section 89 (2) is engaged, because Miss Hickin was "a person qualified to succeed the tenant" because she was a, indeed the only, member of Mrs Hickin's family who was living with her in the house at the date of her death.
iii) Accordingly, by virtue of Section 89(2) the tenancy "vest[ed]" in Miss Hickin "by virtue of this section".
"The method adopted by the 1980 Act to deal with transmissions is different. It reflects the fact that a secure tenancy is different in nature from a statutory tenancy. Whereas the statutory tenancy is unassignable, not an estate in land but a mere "personal right of occupation" (see Lord Greene MR in Carter v SU Carburetter Co  2 KB 288, 291), a secure tenancy is an orthodox estate in land which, subject to specific restrictions in the 1980 Act, can be assigned, held in joint names, pass by survivorship and be disposed of by will on death. Thus, while a statutory tenancy can pass from one person to another only in very limited circumstances (such as the statutory transmission on death or by a court order on divorce) a secure tenancy can in principle pass in any way permissible at common law."
Lord Justice Laws:
Lord Justice Sullivan: