Family member of deceased secure tenant wins Court of Appeal battle over right to buy

The Court of Appeal has ruled on a case where the exercise of the right to buy a council home was brought into question by the death of a resident.

Giving the judgment of the court, Lady Justice Andrews held that the original applicant’s son was entitled to continue with the purchase.

This appeal was referred to the Court of Appeal by HHJ Luba KC.

Andrews LJ said: “The important point of principle that we are asked to decide is whether a family member (B) of a secure tenant with a right to buy their home (A) is able to exercise a shared right to buy if A, whose right is established, dies after B's entitlement to share A's right to buy has been claimed by A, but before the landlord has accepted B's right or it has been established by the County Court?”

Deputy District Judge Watterson held that B - in this case claimant John Howe -  was entitled to exercise the right to buy in those circumstances. Landlord the London Borough of Brent challenged that decision.

Andrews LJ decided DDJ Watterson had been right as Part V of the Housing Act 1985 said that if Mr Howe met the requirements of section 123(1) at the time when his mother Laura Howe served a notice under section 122(1) validly requiring that he share her right to buy, he was deemed from that time onwards to be a joint secure tenant with her for the purposes of Part V and shared in the right to buy, even if his qualifying status was not established until after her death.

Mrs Howe was the secure tenant of a council house in Wembley and on 11 May 2020 sent Brent a section 122(1) notice claiming the right to buy jointly with Mr Howe,

John Howe was not a joint tenant with his mother, but he had been living at the property as his main home for more than 12 months.

On 21 May Brent served a section 124 notice admitting Mrs Howe's right to buy, but denying that Mr Howe was entitled to share that right with her, as it required documentary evidence that he met the qualifying residence condition.

Mr Howe supplied some evidence but on 25 May Mrs Howe died. On 2 June, unaware of her death, the council sent a letter stating it had removed John Howe's name from the application because he did not satisfy the residence requirement.

After the council became aware of Mrs Howe's death, it told Mr Howe the right to buy claim was withdrawn.

He brought County Court proceedings under section 181 seeking a finding of fact that he satisfied the residence condition when his mother claimed her right, and a determination that he may be added to and continue the right to buy application dated 11 May 2020.

DDJ Watterson held that Mr Howe did satisfy the residence requirement and went on to conclude that, as a matter of construction of the relevant provisions of the 1985 Act, Mrs Howe had validly required that Mr Howe be allowed to share the right to buy with her, and therefore the right belonged to him jointly.

Brent appealed arguing this was incorrect since the right covers four stages: making the claim by service of the section 122 notice; establishment of the right to buy; the landlord's section 125 notice and the subsequent resolution of any issues about valuation and price; and conveyance pursuant to section 138.

It said the Court of Appeal had previously held that exercise the right to buy, the tenant must be a secure tenant at all four stages.

Andrews LJ said:  “It is clear from the language of the provisions of Part V, in particular sections 118, 119, and 122(1), that the secure tenant's right to buy arises by virtue of their status and their occupation of the property as their sole or main home, provided that the qualifying period has elapsed.

“Section 122(1) and the following sections are concerned with how that right is to be exercised. The family member's ‘parasitic’ right to buy arises by virtue of their qualifying status at the time when the secure tenant requires them to share in their right to buy, and must be exercised in the same manner if it is to be effective.”

She said the right to buy “does not come into being when (or because) the landlord or a judge admits or declares its existence” and the landlord was not “the sole arbiter of whether the right exists:” 

Section 123(1) concerned a family member when the section 122 notice is given, and not at some future date; “it cannot sensibly be construed in any other way”, Andrews LJ said.

“It required Mr Howe to be living in the dwelling house as his only or principal home at that time.

"Subsection (2) imposed the further requirement that he should have been residing there with his mother throughout the period of twelve months ending with the giving of the notice.

"On the facts found by [DDJ Watterson] both those conditions were met at the time when the relevant notice was given in May 2020.”

She said it does not matter when those facts were established, or by what means, because their existence was enough to make Mrs Howe's requirement to share her existing right to buy valid when her claim was notified to Brent.

On Mrs Howe's death, Mr Howe was deemed to be the sole surviving secure tenant and “that was enough to meet the requirement that there be a secure tenant in possession throughout the process”.

Lord Justices Zacaroli and Lewison both agreed.

Mark Smulian