A recent case looked to argue ‘the one succession rule’ where possession proceedings can be brought against a relative of a deceased tenant who may have shared the property for some time, where the deceased tenant was themselves a successor to the tenancy. This can cause considerable difficulties for housing providers in effectively managing their stock when faced with a long term occupant who may be grieving a close family member. We reviewed the case and have looked at how the case may be different in a Renting Homes world.
S’s parents had been granted a joint tenancy by H. S’s Dad died and Mum became the sole tenant by succession. On her death some 12 years later, S applied to succeed the tenancy and his request was refused by H. A Notice to Quit was issued and possession proceedings followed.
In the County Court, S argued:
(i) “the one succession rule” in Sections 87 and 88 HA 1985 was incompatible with his rights under Articles 14 and 8 of the ECHR; and
(ii) the decision not to make him a discretionary offer of the tenancy was unlawful because H had failed to apply its own policy correctly.
At first instance S lost on both grounds and a possession order was made. On appeal S was successful in his second argument and the claim for possession was dismissed. S, still decided, however, to pursue the human rights point in the High Court. He claimed the operation of Sections 87 and 88 constituted unlawful discrimination. This was on the basis that a child of a divorced couple can succeed upon the death of the divorcee, but the child of a deceased widow cannot.
The court applied a 4 stage test. It was common ground that Article 8 was engaged. The court accepted, albeit tentatively, that the two situations were analogous, but accepted the Secretary of State’s (as an interested party) submission; it is not the status of a child of the widow or the child of the divorcee that determines whether or not he or she can succeed the secure tenancy. It is the legal mechanism by which the widow or divorcee themselves acquired the tenancy that determines whether the “one succession rule” is engaged. The court went on to say that the chosen comparator in the case i.e. a child of a deceased divorcee was artificial. That was sufficient to dismiss S’s claim. S has however, appealed to the Court of Appeal and the matter is due to be heard in mid-October 2019. Watch this space for further updates.
It’s quite straightforward, as the death of a joint tenant will no longer count as a succession. So S’s mum would not have been a successor and S would have been entitled to succeed the tenancy as a reserve successor.
For more information on this topic or to speak to our Housing Management team please contact 029 2267 5560.