Factual and Procedural Background
The late Mrs Howe was the secure tenant of a council house in The City. On 11 May 2020, Mrs Howe served a section 122(1) notice on the landlord, Company A, claiming the right to buy the property jointly with her adult son, the Respondent. Although the Respondent was not a joint tenant, he had lived at the property as his principal home for over twelve months prior to the claim. The landlord admitted Mrs Howe's right to buy but denied the Respondent's entitlement to share that right, requesting documentary evidence to prove his qualifying residence condition. Mrs Howe died shortly after the landlord's response. The Respondent provided evidence of his residence, but the landlord maintained that the right to buy claim was withdrawn following Mrs Howe's death.
The Respondent initiated proceedings in the County Court under section 181 seeking a declaration that he satisfied the residence condition at the time of the claim and that he could be added to and continue the right to buy application. The judge held that the Respondent met the residence requirement and that Mrs Howe had validly required that he share the right to buy, thus making him a joint secure tenant for the purposes of exercising that right. The landlord, Company A, appealed this decision.
Legal Issues Presented
- Whether a family member of a secure tenant with a right to buy can exercise a shared right to buy if the secure tenant dies after the family member's entitlement has been claimed but before the landlord has accepted the family member's right or it has been established by the County Court.
- Whether the deemed joint tenancy and shared right to buy arise at the time the original notice requiring the family member to share the right is served, or only upon acceptance or establishment of the family member's right.
- Whether the requirement that there be a secure tenant at all material times throughout the right to buy process precludes the family member from continuing the claim after the original tenant's death if the right was not established prior to death.
Arguments of the Parties
Appellant's Arguments
- The right to buy process involves four stages: service of the section 122 notice (claim), establishment of the right (by landlord admission or court declaration), service of the section 125 notice (valuation), and conveyance under section 138.
- The tenant must be a secure tenant at all stages, including at the time of conveyance, to exercise the right to buy.
- The family's right to share the secure tenant's right to buy is parasitic and only arises upon acceptance or establishment of that right by the landlord or court.
- The landlord has no obligation until the right is established; thus, the family member's right does not crystallise merely upon service of the initial notice.
- Reliance on authorities such as Sutton LBC v Swann, Muir Group Housing Association Ltd v Thornley, and Southwark London Borough Council v Francis to support the requirement of continuous secure tenancy and the procedural nature of the right.
- The decision in Copping v Surrey County Council supports that a claim not established or pursued is effectively abandoned and cannot be revived retroactively.
- Section 136(6) of the Housing Act 1985 limits the effect of succession rights, implying the family member's right depends on the status at the time of establishment.
- The decision in London Borough of Harrow v Tonge is distinguishable because in that case the landlord accepted the family member's claim before the tenant died.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| London Borough of Enfield v McKeon [1986] 1 WLR 1007 |
Right to buy is lost if specified conditions arise before conveyance. |
Confirmed that right to buy can be lost before conveyance if conditions arise. |
| Muir Group Housing Association Ltd v Thornley (1992) 25 HLR 89 |
Right to buy lost if tenant ceases to be secure tenant or occupant before conveyance. |
Supported principle that continuous secure tenancy is required throughout process. |
| Copping v Surrey County Council [2006] HLR 16 |
A claim to exercise right to buy not pursued is deemed abandoned; right is effective only when established. |
Distinguished from present case; did not affect deemed joint tenancy under section 123(3). |
| London Borough of Harrow v Tonge (1993) 25 HLR 99 |
Deemed joint tenancy and joint right to buy arise upon valid notice requiring sharing of right. |
Applied to hold that family member becomes sole secure tenant on original tenant's death. |
| Sutton LBC v Swann (1986) 25 HLR 99 |
Tenant must be secure tenant at all stages of right to buy process, including conveyance. |
Supported landlord's argument on continuous secure tenancy requirement. |
| Southwark London Borough Council v Francis [2011] EWCA Civ 1418 |
Landlord has no statutory duty until right is established; no damages for breach of statutory duty. |
Supported argument that right is procedural and not immediately binding on landlord. |
Court's Reasoning and Analysis
The court analysed the statutory framework under Part V of the Housing Act 1985, focusing on sections 118, 119, 122, 123, 124, 125, 136, and 181. The court emphasised that the secure tenant's right to buy arises by virtue of their status and occupation of the property and that the right to buy is exercised by serving a written notice under section 122.
The family member's right to share the right to buy is "parasitic," arising only if the family member satisfies the qualifying conditions at the time the secure tenant serves the notice requiring them to share the right (section 123). The court rejected the appellant's submission that the family member's right only arises upon acceptance or establishment by the landlord or court, holding instead that the deemed joint tenancy and shared right arise immediately upon service of a valid notice under section 122 requiring sharing.
The court distinguished the present case from Copping, clarifying that Copping concerned abandonment of claims and did not address the effect of section 123(3). It relied heavily on Tonge, which held that the family member becomes a joint secure tenant at the time the valid notice is served and, upon the original tenant's death, becomes the sole secure tenant entitled to continue the right to buy claim.
The court found that the landlord's acceptance or court establishment of the right merely confirms or proves the right's existence but does not create or perfect it. The right exists at the time the valid notice is served if the conditions are met. The court rejected the appellant's reliance on section 136(6) as irrelevant to when the deemed joint tenancy arises.
Consequently, the Respondent was deemed to be a joint secure tenant from the date of service of the notice and became the sole secure tenant upon Mrs Howe's death, satisfying the requirement that a secure tenant occupy the property throughout the right to buy process.
Holding and Implications
The court DISMISSED THE APPEAL.
The holding confirms that where a secure tenant validly requires a family member to share the right to buy under section 123 by serving a notice under section 122, the family member is deemed a joint secure tenant immediately, regardless of whether the landlord has accepted this or a court has established it. If the original secure tenant dies after the notice is served but before acceptance or establishment of the family member's right, the family member becomes the sole secure tenant and may continue to pursue the right to buy.
This decision clarifies the timing of the creation of the deemed joint tenancy and protects the family member's right in such circumstances. It does not establish new precedent beyond the interpretation of the statutory provisions in the Housing Act 1985 but affirms the reasoning in Tonge and distinguishes the present facts from those in Copping and other cited authorities.