The 'no succession' rule

Is the differential treatment afforded to persons who become sole tenants consequent upon divorce and those who become sole tenants consequent upon widowhood compatible with the ECHR? Professor Ian Loveland reports.

The scheme of the Housing Act 1985 (at ss.87-88) apparently permits only one ‘succession’ to a secure tenancy (entered into before April 2012), either by a spouse of the deceased tenant or a qualifying family member (s.113).

In the case of Samawi v Haringey LBC (Claim no: A01EC488, July 03, 2015, Central London County Court, Mr Recorder Bowdery QC) Mr Simawi was evidently subject to this rule. His father had been granted a secure tenancy by Haringey in the 1990s. When his father died, Mr Simawi’s mother succeeded to the tenancy. When she died, Mr Simawi, although he claimed to be a qualifying family member, had no right to succeed as there had already been one succession. The local authority issued proceedings against him on the basis that he was a trespasser.

The main ground Mr Simawi’s defence focused on was an apparent anomaly in s.88, 1985 Act. By s.88(1)(e) a person (A2) who becomes a sole tenant because the tenancy vests in him/her on the death of the previous tenant (A1) - a widow being the obvious example - is a successor. However, by s.88(2) a person (B2) who becomes a sole tenant because the tenancy is transferred to her in the context of relationship (with B1) breakdown proceedings is not a successor.

A2 and her putative successors (be it a new spouse or a qualifying family member) are thus treated by the law less beneficially than B2 and her putative successors. Mr Simawi contended that this death/divorce dichotomy had no rational basis and was contrary to Art.14. The argument was based on an academic analysis published in the Conveyancer and Property Lawyer in 2012: (Loveland I. (2012) ‘Second successions to secure tenancies’ The Conveyancer and Property Lawyer 453).

In short terms, Mr Simawi’s argument was that his mother’s position as a (successor) tenant through widowhood was a status for the purposes of Article 14 of the European Convention on Human Rights (anti-discrimination); that it was appropriate to compare her position with that of a (non-successor) tenant through divorce; and that the differential treatment accorded by the law to these two groups had no objective justification.

At first instance, DJ Manners held that the defence was not seriously arguable. Permission to appeal was granted on the papers. At the appeal hearing, DJ Manners’ judgment was reversed and the matter remitted for trial.

Mr Recorder Bowery’s judgment on the Art 14 point obviously has no binding precedential value. However, the ‘no second succession rule’ in respect of secure tenancies is one that arises quite often in practice and the judgment provides a basis for arguing before a District Judge that such claims should be stayed pending the initial determination.

Professor Ian Loveland is a barrister at Arden Chambers and appeared for Mr Simawi. He can be contacted on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it..