Succession of a tenancy in Social Housing – the rules
3 October 2022
The recent high court case of Dudley Metropolitan Borough Council (MBC) v Mailley [2022] EWHC 2328 (QB) is vital reading for social landlords as it clearly sets out the rules regarding succession of a tenancy.
Facts
In 1965 the Defendant’s mother became tenant of the three bedroom property in question. Following the introduction of the Housing Act 1980, the tenancy became secure. The Defendant had lived at the property for about 50 years at the time proceedings were issued. In 2016, the Defendant’s mother lost capacity and was transferred to a nursing home for respite care. She resided there until her death in January 2018. It was Metropolitan Borough Council’s (MBC) position that the mother had lost her security of tenure as she was not residing in the property as her only or principal home. A notice to quit was served in November 2016 and possessions proceedings issued after her death.
The Defendant challenged the claim on three grounds.
- Firstly, the proceedings were unlawful, as MBC had not followed its own lettings policy
- Secondly, eviction would breach her rights under Article 8 of the ECHR
- Thirdly, section 87 Housing Act 1985 was incompatible Article 14 of the ECHR
Possession of the property was awarded to MBC, despite the Judge noting that had the Defendant’s mother passed away prior to her residing in a care home the Defendant could have succeeded the tenancy. Additionally, the tenancy could have been assigned to the Defendant under Section 91(3) Housing Act 1985.
It was held that in relation to ground one, MBC had repeatedly attempted to engage her in a review and in any event, the Defendant’s case was not close to clearing the hurdle required for such a challenge. In relation to the second ground, it was held that the eviction was proportionate to carry out MBC’s housing management functions. It was noted that there would have been under occupation in an area with very limited family home resources. In relation to ground three, it was held that the Defendant did not possess a “status” that was protected by Article 14. There was no class of persons whose situation could be contrasted against in order to demonstrate discrimination. Furthermore, it was determined that section 87 achieved a legitimate aim and that a right to succeed on a certain and permanent occurrence was not analogous to a right to succeed on an uncertain and potentially temporary basis.
Law
In relation to tenancies granted prior to 1 April 2012, a secure tenant can be succeeded at the time of their death by a spouse, civil partner or other family member. Providing they have resided with the deceased in the property as their only or principal home in the 12 months leading up to their death and that the deceased did not succeed to the tenancy themselves. This is provided for in section 87 and 89 of the Housing Act 1985. For tenancies granted post 1 April 2012 please see section 86A Housing Act 1985.
Section 91 Housing Act 1985, generally prohibits assignment save for the exceptions outlined in section 91(3).
The Birketts view
The key takeaway from this case is that it is important to be aware that the rules for succession can be different depending on when the tenancy was granted, so it is vital that this is checked. The rules post 1 April 2012 limit who can succeed. Additionally, it is also important to consider if the tenancy has been succeeded to previously. Furthermore, it is important to be aware of the conditions relating to succession in the tenancy itself.
Another important point to consider is that the court has shown a willingness to engage with a broad range of factors when making decisions that impact housing management functions. This judgement should provide some comfort to providers of social housing. The claimant in this case is a local authority but it seems unlikely that the court would apply different principles had it been a registered provider instead.
How Birketts can help
Birketts has a specialist team of Housing Management lawyers to help to clients stay ahead. Our expert lawyers can advise on all aspects of housing and asset management from complex ASB claims, Equality Act defences, Building Safety issues, defending disrepair claims/EPA prosecutions, subletting/housing fraud cases, service charge disputes, s.20 consultation issues, applications to vary defective leases, to name but a few. Our experts have decades of experience acting for Registered Providers and Local Authorities and offer a truly ‘one stop shop’ for the issues facing the sector.
Sectors
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2022.