In the recent Supreme Court
judgment of Solihull v Hickin, the law regarding transmission of property in a
secure tenancy was contested. This secure tenancy, leased from Solihull
council, belonged to Mr and Mrs Hickin as joint tenants, with their daughter
resident at the property. Upon the death of Mrs Hickin, under the common law doctrine
of survivorship, the secure tenancy belonged solely to Mr Hickin. However, he
was absent from the property and Solihull served notice to quit the property, bringing
proceedings for possession from the daughter, as their contention was that the
sole tenant was Mr Hickin who had forfeited his right to the secure tenancy due
to his absence.
This contradicted with the
application of section 89 of the Housing Act 1985, which upon satisfaction of
the conditions set out (including; residing in the property for 12 months prior
to Mrs Hickin’s death, and the secure tenant not being a survivor themselves)
the Hickin’s daughter, as resident of the property, would be the sole tenant
upon the death of Mrs Hickin.
At first instance, Deputy-District
Judge Hamersley rejected the daughter’s case and due to the absence of Mr
Hickin, permitted the council’s claim for possession. This was appealed to the
Court of Appeal, and subsequently to the Supreme Court, whereby it was declared
“The relationship between Part IV of the Housing Act and the common law is not
in doubt. A secure tenancy is not just a personal right of occupation. It is an
estate in land...” (per Lord Sumption at para 6). With a 3:2 majority; it was
held that the Act is relevant only when the survivorship principle cannot be
held; ie when all joint tenants are either absent or dead.