Notices to quit and undue influence

House key iStock 000004543619XSmall 146x219Jonathan Manning analyses a recent High Court housing case where, amongst other things, it was claimed that a council had obtained a notice to quit by undue influence or unconscionable behaviour.

iThe High Court has held in Birmingham City Council v Howell and Beech [2013] EWHC 513 (QB) that a local authority had not obtained a notice to quit from an elderly tenant by undue influence or unconscionable behaviour; that, following the expiry of the notice to quit, its decision not to grant a new tenancy to the former tenant’s daughter was not unlawful; and that the eviction of the daughter was not disproportionate.

The court refused to make a declaration of incompatibility, in relation to the succession provisions of the Housing Act 1985 on the ground that that remedy was irrelevant.

Facts

The claimant local authority sought possession of a three-bedroom property which had been let under a secure tenancy to its tenant (W). W had originally been a joint tenant of the property with her husband, but had succeeded to the tenancy on his death in 1994 (Housing Act 1985, s.88(1)(b)).

In 2007, W’s daughter (H) and her husband (B) had come to live at the property with W. H had helped care for W. H repeatedly sought to have her name added as a joint tenant of the property with W. The authority refused this request on the bases that (i) such a request would only be accepted if made by the tenant, and (ii) the authority’s policy was not to grant cross-generational joint tenancies. W never requested that H be should made a joint tenant.

In October 2009, W went into hospital for an operation. In December, when she was ready to be discharged, she did not return to the property but was discharged into a care home for a trial period. In January 2012, H wrote to the authority to the effect that W would not be returning to the property but would be staying permanently in the care home. The letter asked if the authority would grant H a new tenancy of the property under its policy in relation to lodgers left in occupation.

In February 2010, the authority’s housing officer interviewed W in the care home, in the presence of the manager. The housing officer explained to her that she could not keep the tenancy because she was no longer able to occupy it as her only or principal home, that if she signed the notice to quit, H would no longer be able to live at the property, but that she was under no obligation to sign the notice, and could discuss it with her daughters if she wanted to, but the authority would not allow her to retain the tenancy. W signed the notice to quit.

On the expiration of the notice to quit, H applied for a tenancy of the property under the authority’s discretionary policy.

W died in June 2010. H could not succeed to the tenancy because W was herself a statutory successor following the death of her husband, W was not a secure tenant of the property on her death and H was not living with W at the date of her death.

In July 2010, a senior officer panel decided that she should not be granted a tenancy, primarily because the property had three bedrooms and H and B only needed only one bedroom accommodation, but that they should be given sufficient points to bid for alternative one bedroom (or two-bedroom sheltered) accommodation. H and B remained at the property and made no bids for alternative accommodation. In August 2011, the authority issued possession proceedings against them.

Defences

H and B sought to defend the possession claim on four grounds.

  1. The notice to quit was invalid because it had been obtained from W, who was vulnerable, by means of undue influence or unconscionable behaviour by the authority’s housing officer;
  2. The decisions not to allow H to become a joint tenant with W, and not to grant H a new tenancy after the expiry of W’s notice to quit,were unlawful.
  3. Eviction would be a disproportionate infringement of H and B’s art.8 rights because (a) H had a long-standing connection with the property, having lived there as a child and since 2007; (b) H should have been given a tenancy of the property (whether joint with W or sole after her notice to quit expired); (c) H’s disabled son might stay with her from time to time; (d) H and B provided significant assistance to their elderly neighbours; and, (e) they had done considerable work tending the garden.
  4. The provisions of s.88(1)(b), 1985 Act (succession of a surviving joint tenant), were incompatible with art.8, in that they prevented a child in the position of H from succeeding to or from being granted an assignment of (s.93(1)(c)), a secure tenancy whereas a child of a single parent would not be so prevented.

Keith J ordered possession of the property.

W’s notice to quit was valid. Undue influence could not be made out. As to the categories of undue influence, referred to in Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773:

(i) the housing officer had not exerted improper pressure on or coerced W so that actual undue influence had not occurred;

(ii) the relationship between housing officer and tenant was not one which the law recognised as giving rise to an irrebutable presumption of a relationship of trust and confidence, requiring the claimant to provide a satisfactory explanation for the transaction if undue influence is not to be presumed;

(iii) the actual relationship between W and the housing officer was simply that of council official and council tenant; she was entitled to expect that he would deal honestly with her, and may have thought that he would tell her everything she needed to know in order to make an informed decision but that did not mean that their relationship was one in which she actually placed trust and confidence in him. In any event, the housing officer had not deliberately kept quiet about the consequences of W signing the notice to quit, let alone in order to benefit the authority. That also explained by the unconscionable behaviour defence failed.

Nor did the housing officer’s failure to suggest that W take independent legal advice affect the position. Absent unconscionable conduct or unconscientious use of power, a contract would not be set aside merely because the aggrieved party did not have independent legal advice (see Chitty on Contracts, vol 1, 31st ed, para. 7-136).

As to the other grounds of defence:

  1. the authority’s refusal to join H as a joint tenant of the property was lawful; there could be no challenge to the policy, of which H had been aware, of only accepting such requests from the current tenant and there was no challenge to the policy of refusing cross-generational joint tenancies;
  2. the authority were not obliged to set up a meeting with W and H, prior to the signing of the notice to quit, at which W could have requested adding H as a joint tenant; H had already been told of the policy but W had made no such request;
  3. the decision not to grant H a new tenancy was lawful; the senior officer panel had taken all relevant matters into account, and were entitled to conclude that the competing needs of families waiting for a property with three bedrooms should outweigh the factors relied on by H and B;
  4. the proportionality defence did not even get over the initial hurdle of being “seriously arguable”; the personal circumstances of H and Beech were a long way from making an order for possession against them a disproportionate means of ensuring compliance with the authority’s policy of allocating properties with three bedrooms only to those who really needed a property of that size;
  5. the incompatibility argument was not engaged; even absent the alleged discriminatory provision, H would still not have been entitled to succeed to W’s tenancy because she was not living with W at W’s date of death, W had lost security of tenure when she moved permanently into the care home, and W’s tenancy had come to an end well before her death on the expiry of her notice to quit. While H’s inability to succeed also precluded an assignment to her under s.93(1)(c), 1985 Act during the continuation of the secure tenancy, W had never sought to, or purported to, assign the tenancy to H.

Jonathan Manning is a barrister at Arden Chambers. He appeared for Birmingham CC. He can be contacted on 020 7242 4244 or by This email address is being protected from spambots. You need JavaScript enabled to view it..