Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
The recent case of Haringey LBC v Simawi  EWHC 290 (QB) focussed on the issue of statutory succession where one of two joint secure tenants had died, then the remaining tenant later died leaving an adult child (the Defendant) in occupation.
Upon the death of the Defendant’s mother, Haringey LBC brought possession proceedings on the basis that the Defendant was unable to succeed to the tenancy as his deceased mother was herself a successor. A familiar and relatively regularly occurring scenario, albeit one that relatives sometimes find hard to understand when they have lived in the home a long time.
The Defendant claimed in his defence that the ‘no second succession rule’ in the Housing Act 1985 (also found in the Housing Act 1988 for assured tenants) is incompatible with Articles 8 and 14 of the Human Rights Act 1998 and is therefore unlawful. It was suggested by the Defendant that the rule is indirectly discriminatory because women tend to live longer than men. The Defendant additionally submitted that the rule is not consistent, for example, children do qualify to succeed to tenancies which have been transferred from one parent to the other by court order in family proceedings following a relationship breakdown.
The Defendant also claimed that Haringey LBC had not properly applied its discretionary tenancy policy. This argument succeeded; however, the correct application of the discretionary policy would not have led to the tenant getting a secure tenancy.
The matter was transferred to the High Court due to the public importance of the human rights issue raised in the defence. It was agreed between the parties that if the Defendant were to accept a new tenancy, the claim for possession would come to an end and the human rights issue would become academic. However, the Defendant submitted that as the issue was one of public importance, the Court should determine it even if the matter became academic by the case settling (for example, if Haringey LBC later offered him a secure tenancy anyway).
Somewhat unusually, it was decided by the Court that the issue should be determined, even if it became academic in the case in question. The Court reasoned that the defence raised a point of ‘real importance and significance potentially affecting a large group of people’. This decision means that Haringey LBC needs to continue to deal with the succession argument even if they reach an agreed settlement.
The case will be heard in October 2018, with the outcome likely to be of great importance to all social landlords. We are already aware of tenant's solicitors arguing defended similar succession cases should be stayed pending this appeal.
What, no Will? What notice to serve?
In the meantime, the issue of what happens to a tenancy when a tenant dies without leaving a Will and no one has taken out ‘Letters of Administration’ is being tested on a county court appeal.
It had always been thought that the correct way to end the tenancy in this situation is to serve a Notice to Quit addressed to “The Personal Representatives of [name of tenant] (deceased)”. This Notice should be served on the property and also sent to the Public Trustee along with Form NL1 and the relevant fee (currently £40). See our previous article on the timing issue of serving Notices on the Public Trustee on the same day as at the Property here. This understanding arises from both legislation, case law and indeed the Public Trustee’s own Practice Note. A ground 7 NSP is not used where there is no Will unless, and until, letters of administration are taken out, which in practice is pretty rare.
Lawyers representing tenants have however noted the revised commentary of a new edition of a leading textbook on this issue and have begun to raise defences to possession proceedings arguing a NSP on ground 7 should be used instead. This is despite there being no changes to the relevant legislation and no new binding case law to support a change of approach. However, in at least one Watford county court case a possession claim against a “failed successor” was dismissed on this basis. Our client is currently appealing this decision arguing there has been an error in law and the Watford County Court appeal hearing is awaited.
In the meantime, be aware that you might start to see similar defences to possession claims in the county court. If you do, feel free to contact Rebecca Sembuuze to discuss possible arguments to run. Watch this space for the appeal outcome in due course.
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