In the case of Solihull MBC v Hickin in which judgment was handed down by the Supreme Court on 25 July 2012, the Court has confirmed that the right of survivorship continues to apply where one of two joint tenants die, regardless of whether the remaining joint tenant was living in the property or not.
The facts of the case
Mr and Mrs Hickin had a secure tenancy of a Council property as joint tenants. They later separated and Mr Hickin moved away, but he remained a joint tenant. Mrs Hickin then died in 2007 leaving her daughter in the property where she had lived for many years. The issue in the case was whether the daughter was entitled to succeed (as she would have been if her mother was a sole tenant) or if the ex husband took over the tenancy under the right of survivorship as a joint tenant, even though he had not occupied the property for many years.
Solihull Council served a Notice to Quit on Mr Hickin. They then obtained a possession order on the basis that he was the remaining tenant and as he had moved away he was not occupying the property as his only or principal home and therefore had lost security of tenure.
The daughter claimed that the Housing Act succession provisions allowed her to succeed to her mother’s tenancy and that those statutory provisions overrode the common law right of survivorship.
The Court of Appeal upheld the County Court possession order. The daughter then appealed to the Supreme Court.
The Supreme Court decision
Her appeal failed. The Court found that the question of who succeeds the joint tenancy does not arise as long as one of the joint tenants remains alive. The tenancy continues in existence. As Mr Hickin remained the tenant there was nothing to which the daughter could succeed.
The decision was a majority decision of 3 to 2, but the majority decision obviously prevails. The Court's view was that the interpretation of the legislation being proposed by the daughter was “extremely implausible”.
- This reinforces the legal position as it was always thought to be.
- If no steps have been taken to end or assign a joint tenancy after a relationship breakdown and one of the joint tenants has left, that does not prevent the surviving joint tenancy taking on the tenancy automatically under the right of survivorship when the occupying joint tenant dies.
- The succession rights in the legislation do not then kick in.
- However if the surviving joint tenant is not occupying as their only or principal home the landlord can serve a Notice to Quit on them to end their tenancy and then seek possession.
- Any family members remaining in occupation have no right to succeed and need to apply for re-housing.
- Although this case was decided in relation to secure tenancies, it is expected that the same position would apply in relation to assured tenancies.
For any further queries in relation to this case, please do not hesitate to contact a member of the Housing Litigation team via 0121 212 7400.