Rights under a secure tenancy
It has been held in the case of Solihull Metropolitan Borough Council v Hickin, that where a joint tenant holds a secure tenancy, the remaining surviving tenant can rely on the law of survivorship even where not in occupation of the property at the time of the other tenant’s death, and even where there is another person in occupation who may be otherwise entitled to succeed to the tenancy.
Mr and Mrs Hickin became the joint tenants of a property, which was owned by Solihull Metropolitan Borough Council. The property became a secure tenancy in October 1980. Mr Hickin left the property at some point in 1980, and Mrs Hickin continued to live there until her death in 2007. Their daughter, E, had lived in the property throughout and continued to reside there. Despite Mr Hickin having departed, the joint tenancy was never severed.
Upon Mrs Hickin’s death, the Council served notice to quit on Mr Hickin, and began proceedings against E for possession. E appealed first to the Court of Appeal, and then to the Supreme Court. She argued that sections 87 to 89 of the Housing Act 1985 applied, which served to override the doctrine of survivorship, given that Mr Hickin was not in occupation.
The Court held that the rights of Mr Hickin were still in existence and that therefore, the rights of survivorship took precedence over the provisions of the Housing Act 1985. It was also held that Mr Hickin was free to return to the property before termination in order to crystallise his rights.
Whilst the Court came to this conclusion, the dissenting view was that the fact that as Mr Hickin had not been in occupation, E’s appeal should have been successful, as the law of survivorship should not have applied. It was something that according to Lord’s Mance and Clarke, should merit further consideration by Parliament as there appeared to be a difference between case law and statute.
This case confirms that a party does not need to be in occupation in order to benefit from the law of survivorship. It also confirms that parties who wish to deviate from these rights should ensure that joint tenancies are severed where one joint tenant leaves the property on an intended permanent basis.
Notwithstanding this decision, however, if a party is wanting to rely on the law of survivorship, they are advised to seek occupation as the uncertainty expressed in the dissenting views could see a shift in position taken by the Courts in future cases.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.