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This appeal (from the Court of Appeal [2010] EWCA Civ 868; [2010] 1 WLR 2254) concerns whether, on the death of one of two joint tenants, a secure tenancy vests in the remaining absentee joint tenant as sole tenant (as per the the common law doctrine of survivorship), or whether another family member is entitled to claim the benefit of a statutory succession (as per the Housing Act 1985), thus ousting the common law rules.

Miss Hickin’s parents were joint secure tenants under a weekly period tenancy. In or around 2001, Miss Hickin’s parents’ marriage failed and her father left. She continued to reside in the house with her mother, who died in 2007. Solihull MBC served notice to quit on Miss Hickin’s father, contending that he had become the sole tenant of the house pursuant to the doctrine of survivorship and, because he no longer lived there, security of tenure under the 1985 Act had been lost.

On expiry of that notice, Solihull MBC commenced possession proceedings which Miss Hickin defended, contending that, as she had resided with her mother for the requisite 12-month period immediately preceding her mother’s death, she was entitled to succeed to the tenancy pursuant to ss.87-89, 1985 Act.

At first instance, a district judge made a possession order but Ms Hickin successfully appealed to a circuit judge.  Solihull MBC successfully appealed to the Court of Appeal where Neuberger LJ held that, in the absence of any provision within the Housing Act 1985, Part IV to the contrary, the common law doctrine of survivorship applied and Solihull LBC were thus entitled to possession.  Neuberger LJ held that:

a)     at the time of Miss Hickin’s mother’s death, “the tenant” (in this context a joint tenant) for the purposes of s.87 had not died, only one of the people comprising “the tenant” had died”;

b)     the 1985 Act specifically contemplated the possibility of a secure tenancy vesting by operation of survivorship (see s.88(1)(b));

c)     albeit the contrary submission was attractive on the facts of Miss Hickin’s case, it was capable of producing unsatisfactory outcomes in other cases; and

d)      the fact that different results were produced in respect of secure tenancies and secure licences was of no consequence.

The Supreme Court heard this appeal on July 3, 2012 and judgment is awaited.  It is noteworthy that the argument is framed in terms of statutory construction rather than seeking to rely on Arts.8 and 14, European Convention on Human Rights 1950.  The Court of Appeal observed that Solihull MBC had offered alternative accommodation to Miss Hickin and so the issue is one of her entitlement to remain in her family home rather than a more conventional “eviction” type case.

While the facts of the case generate some sympathy, it is this author’s view that the approach advocated by Miss Hickin is a step too far towards statutory construction operating in a vacuum and a step to be avoided.  I wonder if the Supreme Court will agree…