Brent London Borough Council v Howe

Housing – Secure tenancy – Right to buy – Secure tenant claiming right to buy property jointly with respondent adult son – Secure tenant dying – Appellant local authority asserting right to buy claim withdrawn – County court holding respondent deemed secure tenant for purpose of exercising right to buy – Appellant appealing – Whether death of secure tenant preventing respondent sharing right to buy – Appeal dismissed L was the secure tenant of a council house in Wembley. In May 2020, she sent to the appellant local authority a notice under section 122(1) of the Housing Act 1985 claiming the right to buy the property jointly with the respondent, her adult son. The respondent was not a joint tenant with his mother, but he had been living at the property as his main home for more than 12 months before she sought to exercise the right to buy it. The appellant served a section 124 notice in reply, admitting L’s right to buy but denying that the respondent was entitled to share the right to buy, on the basis that it required documentary evidence to prove that he met the qualifying residence condition in section 123(2) of the 1985 Act. Shortly after the appellant’s response was received, L died. In the interim, the respondent sent the requisite evidence. After the appellant became aware of L’s death, it wrote to the respondent asserting that the right to buy claim was withdrawn. The respondent brought proceedings in the county court under section 181 of the 1985 Act seeking a finding of fact that he satisfied the residence requirement in section 123(2)(a), and a declaration that he was entitled to “continue” the right to buy application. The judge held that, on the evidence before her, the respondent satisfied the residence requirement and made the declaration sought. The appellant appealed. Held: The appeal was dismissed. (1) It was clear from Part V of the 1985 Act, particularly sections 118, 119 and 122(1), that the secure tenant’s right to buy arose because of their status and occupation of the property as their sole or main home, provided that the qualifying period had elapsed. Section 122(1) and the following sections concerned how that right was to be exercised. The family member’s “parasitic” right to buy arose by virtue of their qualifying status when the secure tenant required them to share in their right to buy, and had to be exercised in the same manner if it was to be effective. A right could not be exercised or enforced until it existed. Section 124 was couched in terms of the landlord admitting or denying that someone had that right. The landlord was not the sole arbiter of whether the right existed. The landlord’s service of a notice refusing to admit the tenant’s right did not affect the tenant’s rights as such; it merely required the tenant to prove that he had the right asserted. Nor did the establishment of the existence of the right perfect or crystallise a right which was otherwise inchoate. It was just a step towards the enforcement of the right. Unless the landlord accepted it, the person who had the right was required to prove that they had the right before they could enforce it, and before the landlord was required to do anything further to respond to the claim: Southwark London Borough Council v Francis [2011] EWCA Civ 1418; [2011] PLSCS 290; [2012] PTSR 1248 considered. (2) Section 123(1) was concerned with where the family member was living at the date when the section 122 notice was given, not some future date. It required the respondent to be living in the dwelling house as his only or principal home at that time. Section 123(2) imposed the further requirement that he should have been residing there with his mother throughout the period of 12 months ending with the giving of the notice. On the facts found by the judge, both those conditions were met when the relevant notice was given.  The effect of section 123(3) was to deem the family member to have become the sole secure tenant to whom the council had a duty to convey the property. Where section 123(3) was operative, there would be two separate and distinct consequences: (i) the right to buy would belong to the secure tenant and the family member jointly; and (ii) the secure tenant and the family member would be deemed to be joint secure tenants for the purposes of Part V of the 1985 Act. The key question was whether section 123(3) applied to the facts of the present case: Harrow London Borough Council v Tonge [1993] 1 EGLR 49 and Copping v Surrey County Council [2006] 1 EGLR 42 considered. (3) It did not matter when those facts were established, or by what means, because their existence was enough to make L’s requirement to share her existing right to buy valid when her claim was notified to the appellant. The appellant had already accepted in its section 124 notice that L had a right to buy when she gave the section 122 notice. That meant that at that time she had a right which was capable of being shared with a family member who met the relevant conditions, as the respondent did. There was nothing more that the respondent needed to do to be deemed to be a joint secure tenant. The respondent acquired the right to buy the property jointly with his mother when she validly required the appellant to share her right with him. He was deemed from that time onwards to be a joint secure tenant and shared in the right to buy, even if his qualifying status was not established until after his mother’s death. It followed that upon his mother’s death, the respondent was deemed to be the sole surviving secure tenant. That was enough to meet the requirement that there be a secure tenant in possession throughout the process. (4) There was nothing in the 1985 Act requiring the deemed secure tenant in those circumstances to serve another section 122 notice; the notice already given by his mother was a claim made on behalf of each of them to exercise the right to buy. It followed that, if the original secure tenant died before the other’s right to buy had been established, the survivor remained entitled to establish and enforce their previously shared right, just as if there were originally two secure tenants but the landlord disputed the status of one of them and the other then died. Riccardo Calzavara (instructed by Brent London Borough Council) appeared for the appellant; Richard O’Sullivan (instructed by GN Law) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Brent London Borough Council v Howe