Friday 27 July 2012

Solihull Metropolitan Borough Council v Hickin [2012] UKSC 39


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.