Solihull Council Marks Landmark Victory in Tenant Succession Case

Ref. Solihull Metropolitan Borough Council v Hickin [2012] UKSC 39

In a complex battle of conflicting statute versus common law positions, Solihull Metropolitan Borough Council (Birmingham) has finally won out in the Supreme Court, marking a new precedent for future cases of joint tenancy succession.

The case, referenced above, concerns material facts dating back to 1967 when Mr and Mrs Hickin became joint tenants of a property in Chelmsley Wood, Solihull, under a tenancy later made secure by Part IV of the Housing Act 1985. The issue to be decided upon finally by the Supreme Court was whether on the death of one of two joint tenants of a tenancy agreement which is secure under Part IV of the 1985 Act, the tenancy will vest in the resident child of the deceased tenant by virtue of the succession provisions in Part IV of the Act, rather than the non-resident joint tenant by virtue of the common law doctrine of survivorship.

Solihull Metropolitan Borough Council became the freehold owner and landlord of the property in 1980. On 3 October 1980, the tenancy became a secure tenancy pursuant to Part II of the then Housing Act 1980, which has since been consolidated into the 1985 Act. Around 2001, Mr Hickin left after the marriage broke down, and was not in residence when Mrs Hickin died on 8 August 2007.

Subsequently, Solihull Council served notice on Mr Hickin, still not in residence, to quit the property and started proceedings on the daughter, Elaine, who had lived in the property since the start of the tenancy in 1967. She believed that the tenancy had vested in her, not her father, under s. 89 of the 1985 Housing Act when her mother had passed away.

The case progressed through the County Court, High Court and Court of Appeal before finally making it into the Supreme Court for a final decision. Following the decisions of judges presiding over both the County Court and Court of Appeal, the Supreme Court, led by Lord Sumption, dismissed the final appeal of Elaine Hickin by a vote three to two.

Giving the ratio, Lord Sumption said the relationship between Part IV of the Housing Act and the common law was not in doubt.

“A secure tenancy is not just a personal right of occupation,” he said. “It is an estate of land whose incidents are defined by the general law, save insofar as these are modified by the Act.”

The common law position is that upon the death of a joint tenant, the tenancy is vested in the surviving joint tenant or in all of the survivors if there is more than one.

“Upon the death of one of two persons holding under a joint tenancy, the interest of the deceased person is extinguished,” Lord Sumption said. “The survivor thereby becomes the sole tenant. But there is not transmission of the tenancy.”

Crucially, Lord Sumption rejected the appellant’s primary argument that sections 87-89 constituted an exhaustive code governing the fate of a secure periodic tenancy upon the death of a tenant, and the operation of these provisions was mandatory and automatic, displacing the general law. He instead stated that sections 87 to 91 of the 1985 Act did not wholly displace the general law – “even in the area which they cover”. (Further details of the basis of this decision may be found here)

This result will likely be felt in all future cases concerning the death of one of a pair of joint tenants and will be used as a precedent by all councils in the situation Solihull MBC found themselves in. It could therefore prove important for the future determination of tenancy succession issues and should, in particular, be noted by all involved in local government, housing and tenancy law.

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