The House of Lords decided in a unanimous decision today (16th May 2006) that a person who had been a joint tenant of a local authority tenancy and became a sole tenant prior to the introduction of secure tenancies by the Housing Act 1980 was not a successor, and therefore her son was able to succeed to the council tenancy. "He was a joint tenant and has become a sole tenant" in section 88(1)(b) Housing Act 1985, as amended, means that he was a joint tenant and has become the sole tenant under a secure tenancy.
Birmingham City Council had granted a joint tenancy to Mr and Mrs Walker in March 1965. Mr Walker died in 1969 and Mrs Walker became the sole tenant by the common law right of survivorship. She remained at the property with her son Paul. In 2004, Mrs Walker died leaving Paul in occupation of the property. Birmingham sought possession of the property on the basis that Paul could not succeed to the tenancy because his mother had been a joint tenant and had become a sole tenant and was, therefore, a successor. Paul defended the possession proceedings, arguing that the act of survivorship in 1969 could not be transformed retrospectively into a succession by the Housing Act 1980 and that he was, therefore, entitled to succeed.
Lord Hoffman gave three indications as to why the events to which section 88 refers are events in relation to tenancies which have become secure tenancies and not to events which happened earlier. First, the general presumption against retrospectivity. Secondly, the word "successor" most naturally means successor to a secure tenancy. Thirdly, there is the absence of any rational purpose in giving the definitions a retrospective effect.
This is a case that first came to Garden Court as an enquiry on the Call Counsel advice line. It is a clear demonstration of the importance of that service.
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