Howe v Brent London Borough Council
Deemed Joint Tenancy on Service of Section 122 Notice – Family Members’ Shared Right to Buy Survives Tenant’s Death

Introduction

Howe v Brent London Borough Council ([2024] EWCA Civ 1444) is a landmark decision of the Court of Appeal (Civil Division) clarifying the moment at which a family member, invited by a secure tenant to share the statutory right to buy (RTB) under Part V of the Housing Act 1985 (HA 1985), acquires a legally effective stake in that right. The core dispute concerned whether John Howe (“B”), the son of the late secure tenant, Mrs Laura Howe (“A”), could continue to enforce a shared RTB claim after his mother died but before the landlord, Brent London Borough Council (“the Council”), accepted or the County Court confirmed his status.

Deputy District Judge Watterson at first instance upheld Mr Howe’s entitlement; the Council appealed. The Court of Appeal—Zacaroli, Lewison and Sir Nicholas Patten LJJ—dismissed the appeal, holding that once a section 122 notice validly requires a qualifying family member to share the RTB, that family member is immediately deemed a joint secure tenant for Part V purposes. Consequently, the death of the original tenant does not extinguish the claim.

Summary of the Judgment

• Section 123(3) operates immediately upon service of a section 122 notice that validly requires a family member to share the RTB.
• The family member is from that moment:
  • (i) a joint holder of the RTB, and
  • (ii) deemed a joint secure tenant for Part V only.
• The subsequent death of the secure tenant does not defeat the family member’s entitlement or the ongoing RTB process, provided the family member continues to satisfy occupation requirements.
• Authorities such as Tonge, Copping, and Francis were analysed; the Court distinguished or reaffirmed them where necessary.
• The appeal was dismissed, firmly establishing a new point of principle on the temporal effect of section 123(3).

Analysis

Precedents Cited

1. London Borough of Harrow v Tonge (1993) 25 HLR 99
   • Key precedent on section 123(3). In Tonge, the family member’s status had been accepted by the landlord before the tenant’s death. The Court of Appeal used its reasoning—that section 123(3) produces two instantaneous effects—to resolve the present dispute.
2. Copping v Surrey CC [2005] EWCA Civ 1604
   • Addressed abandonment of a lapsed RTB claim. The Council argued that Copping suggested a right becomes “effective” only once established; the Court rejected that reading, limiting Copping to its facts (delay & abandonment).
3. Sutton LBC v Swann (1986) 25 HLR 99
   • Cited for the principle that there must be a secure tenant in occupation throughout the RTB process.
4. Muir Group Housing Association Ltd v Thornley (1992) 25 HLR 89
   • Reaffirmed that the RTB can be lost if the tenant ceases to occupy.
5. Southwark LBC v Francis [2011] EWCA Civ 1418
   • Explained that section 118 confers a right, not a duty, on the landlord. Used by the Council to stress continuous occupation; distinguished by the Court.

Legal Reasoning

The Court’s reasoning revolves around statutory interpretation of section 123(3) HA 1985:

“Where by such a notice any members of the tenant’s family are validly required to share the right to buy with the tenant, the right to buy belongs to the tenant and those members jointly and he and they shall be treated for the purposes of this Part as joint tenants.”

Key points:

• Timing of Validity – The family member’s residence/spousal criteria under section 123(2) are assessed at the date of the notice. The Court rejected any suggestion that legal recognition is postponed until acceptance or a court declaration.
• “Established” vs “Exists” – Section 125’s concept of a right being “established” (by admission or declaration) is procedural, not ontological. The right exists before it is admitted/proved; establishment is merely a gateway to the later stages (valuation, conveyance).
• Deeming Provision – The language “shall be treated” is unconditional and immediate; it triggers a legal fiction that the family member is a joint secure tenant for Part V purposes from the moment the requirement is validly made.
• Arbitrariness Avoided – Adopting the Council’s view would produce arbitrary distinctions between cases where the landlord replies before or after the tenant’s death. Statutory schemes are presumed not to produce such caprice.
• Section 136(6) Misread – The Court held that the succession provisions do not undercut section 123(3); they operate in a different scenario (e.g., statutory succession) and merely limit the carried-over joint RTB where new tenants could not themselves have added the family member.

Impact

• Practical Guidance for Local Authorities – Councils must treat qualifying family members as joint RTB applicants from the date of a valid section 122 notice. Delayed verification cannot be used to extinguish their claim.
• Security for Family Members – Spouses, civil partners and other qualifying relatives gain significant protection; the death of the original tenant, often occurring in protracted RTB processes, no longer jeopardises their purchase.
• Streamlined Litigation – The decision reduces potential contention about “inchoate” rights, likely lowering litigation costs and delays.
• Consistency with Succession Principles – The judgment dovetails with established succession regimes under the HA 1985, ensuring continuity of housing and property rights within families.
• Future Case Law – Courts may extend the logic to analogous scenarios (e.g., spouses separated but still qualifying, or tenants leaving temporarily), though the Court was careful to leave such questions open.

Complex Concepts Simplified

Right to Buy (RTB)

A statutory entitlement allowing secure tenants of local authorities to purchase their rented homes at a discount, subject to conditions in Part V HA 1985.

Section 122 Notice

The formal written notice by which a secure tenant claims the RTB. It also allows the tenant to nominate up to three qualifying family members to share the right.

Section 123(3) “Deemed Joint Tenancy”

Once a family member is validly included in the section 122 notice (meeting residence/spousal conditions), the statute pretends—deems—that they are a joint secure tenant for the RTB process. This is a legal fiction: it does not change the underlying tenancy agreement but grants RTB procedural rights.

“Established” Right (Section 125)

The point in the RTB process when the landlord has admitted the claimant’s right or a court has declared it. Only then must the landlord serve the offer notice (formally setting price, discount, etc.).

Succession vs. Addition

Succession (section 136) occurs when someone becomes the tenant on the death of the original tenant (usually a spouse). Addition (section 123) is the proactive inclusion of family members to share RTB before the original tenant’s death.

Conclusion

Howe v Brent LBC establishes a clear and robust principle: service of a compliant section 122 notice both confers and crystallises a family member’s shared right to buy and their deemed joint secure tenancy for Part V purposes, with immediate effect. The landlord’s later acceptance or a court’s declaration is evidential, not constitutive. Consequently, the death of the original tenant after serving such a notice does not revoke the family member’s entitlement; the RTB journey may lawfully proceed to completion, safeguarding statutory home-ownership opportunities for families.

The judgment harmonises the RTB framework, aligns with policy objectives of promoting home ownership among secure tenants, and prevents procedural happenstance from thwarting substantive rights. Local authorities, tenants and practitioners must now recalibrate their approaches, ensuring that qualifying relatives are accorded full statutory status from the outset of an RTB claim.