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CHAPTER G
Other rights of tenants with security of tenure
Assignments (secure tenants)
 
The Housing Act 1985 s91 provides that assignment of secure tenancies is, in general, prohibited but provides for a right to exercise mutual exchanges in some circumstances.
Supreme Court (formerly House of Lords)
 
Burton v Camden LBC
[2000] 2 AC 399; [2000] 2 WLR 427; [2000] 1 All ER 943; [2000] LGR 289; (2000) 32 HLR 625; [2000] L&TR 235; [2000] 14 EG 149; (2000) Times 23 February, HL
 
Joint tenant prevented from, in effect, assigning tenancy to other tenant
In 1994 the council granted a joint tenancy to the plaintiff and another tenant. In July 1996 the plaintiff gave notice to the council’s housing benefit department that her joint tenant would be leaving and asked for her housing benefit to be increased so that it covered all of the rent. The council refused either to increase the benefit or to treat the plaintiff as a sole tenant of the property, since the flat had three bedrooms and was needed to accommodate families. However, the departing joint tenant completed a deed of release, releasing her interest to the plaintiff. The plaintiff sought a declaration that she had become the sole tenant of her council flat.
The House of Lords held that the deed of release was not effective. The prohibition on assignment in Housing Act 1985 s91(1) applied equally to deeds of assignment and deeds of release. Whatever the precise form of words chosen, the transaction would ordinarily be regarded as a transfer of one of the tenant’s rights to the tenancy.
Court of Appeal
 
Camden LBC v Alexandrou
(1998) 30 HLR 534, CA
Camden LBC v Alexandrou
 
Surrender by operation of law made out where tenant had sought to assign his interest to other tenant
Camden LBC v Goldenberg
(1996) 28 HLR 727; (1997) 73 P&CR 376; (1997) 95 LGR 693, CA
 
Residence test satisfied where occupant intended to return to grandmother’s flat; intention not displaced by intention to set up home elsewhere if he could
In 1991 the defendant moved in to live with his grandmother in her one-bedroomed council flat in a block reserved for elderly people. In 1992 he married and moved out but he and his wife were unable to find permanent accommodation and after ten weeks he returned to live with his grandmother. In November 1992 she assigned her tenancy to him and moved to a nursing home. The council brought proceedings for possession. The defendant asserted that the assignment was valid as he would have been a person entitled to succeed his grandmother had she died (Housing Act 1985 s91(3)(c)). The council claimed that the ten-week absence broke the one-year period of residence required by section 87 to qualify for succession.
A county court judge granted possession but the Court of Appeal allowed the defendant’s appeal. It unanimously held that the defendant should be treated as continuing to reside at the flat during the ten-week absence, if there was sufficient physical manifestation of his occupation during that period. He had left his possessions there, it remained his postal address and he had throughout maintained an intention to return. By a majority, the court held that, although he and his wife had intended to establish a home for themselves if they could, that had been a distant prospect which qualified, but did not displace, the intention to return.
Croydon LBC v Buston and Triance
(1992) 24 HLR 36, CA
 
Possession ordered where son unable to show tenancy properly assigned to him
A secure tenant left premises to live elsewhere and so lost her secure status (Housing Act 1985 s81). The council terminated the tenancy by notice to quit and began possession proceedings. The tenant had left her adult son behind in the premises. He argued that he had been qualified to succeed his mother (Housing Act 1985 s87) and had become the tenant by assignment before secure status had been lost (Housing Act 1985 s91). He had instructed solicitors to arrange for the tenancy to be transferred to him and had approached the council in good time.
The Court of Appeal granted possession. The son was unable to show either that the purported assignment had been made by deed or that there had been part performance of a parol agreement for an assignment.
Peabody Donation Fund v Higgins
[1983] 1 WLR 1091; [1983] 3 All ER 122; (1983) 10 HLR 82, CA
 
Assignment in breach of tenancy nevertheless operated as an assignment
Mr Higgins was a secure tenant. He wanted to retire to Ireland. Although the tenancy agreement contained an absolute prohibition against assignment, he entered into a deed of assignment with his daughter. She was someone who could have succeeded to the tenancy if he had died (Housing Act 1980 s30, now Housing Act 1985 s87). Mr Higgins then left. Peabody served a notice to quit and brought possession proceedings, claiming that the tenancy was no longer secure because Mr Higgins had ceased to occupy as his only or principal home. HHJ Harris made a possession order.
The tenant’s appeal was allowed. The effect of Housing Act 1980 s37 (now Housing Act 1985 s91(3)(c)) was that the instrument purporting to be an assignment did create a valid assignment, albeit in breach of the terms of the tenancy. Section 37 was not limited to ‘lawful’ assignments. Although the assignment in breach of the tenancy conditions gave rise to a ground for possession under Housing Act 1980 Sch 4 (now Housing Act 1985 Sch 2), it was effective in transferring the secure tenancy to Mr Higgins’s daughter.
Sanctuary Housing Association v Baker
(1998) 30 HLR 809; [1998] 1 EGLR 42; [1998] 09 EG 150, CA
 
Assignment effective despite consent to assign having been obtained by fraud; Fraud nullified consent; no implied surrender
Miss Scamp, an assured tenant of the housing association, sought and obtained the association’s consent to a mutual exchange with a secure tenant of a local authority, Miss Baker. The local authority gave Miss Baker its consent to assign (under Housing Act 1985 s92(2A)). Miss Scamp then entered into a deed of assignment with Miss Baker, transferring the assured tenancy to her. Miss Baker moved into the association’s property but never completed the assignment of her council tenancy to Miss Scamp. The association brought possession proceedings against Miss Baker, contending that its consent had been induced by misrepresentation, that the assignment was a nullity and that the original tenancy (under which the now departed Miss Scamp was alleged still to be the tenant) had been determined by a notice to quit which it had served subsequently. The trial judge found that the ‘mutual exchange’ had been a sham and a fraud from the beginning, as Miss Scamp had never intended to move to the council flat and had been paid by Miss Baker for her co-operation in the trans-actions. He directed himself that ‘fraud unravels all’ and granted a possession order.
The Court of Appeal allowed Miss Baker’s appeal. It held that, even if the consent of the association had been fraudulently obtained, that did nothing to detract from the validity of the assignment by deed in which the two parties (the two tenants) had perfected their own agreement. The effect of nullifying the consent was simply to produce a situation in which a valid assignment had been made without valid consent, exposing the incoming tenant to a possible action for breach of covenant against assignment without consent. The court further held that, since there was no evidence that Miss Scamp had ever received the notice to quit and since the tenancy agreement did not incorporate Law of Property Act 1925 s196 allowing service of notice on the premises, the association could not prove that the original tenancy had been determined. The association could not claim that there had been a surrender because Miss Scamp’s actions in assigning her tenancy were themselves a denial of any proposition that she intended to give up her tenancy to the plaintiff landlords.
Housing management and consultation (secure tenants)
 
Times 4 MarchHousing Act 1985 s21 imposes a duty on local authorities for the general management, regulation and control of their housing. Housing Act 1985 s105 contains the mandatory requirements of the Tenants’ Charter for consultation with council tenants on matters of housing management.
For the following cases on ss21 and 105, see Housing Law Casebook (HLC) 4th edition:
Akumah v Hackney LBC [2005] UKHL 17; [2005] 1 WLR 985; [2005] 2 All ER 148; [2005] HLR 26; (2005) Times 4 March (HLC 4th edition, E4.1)
General management duty encompassed duty to control parking on housing estates
R v Brent LBC ex p Morris (1998) 30 HLR 324; (1997) 74 P&CR D29, CA (HLC 4th edition, E4.2)
Requirement to consult did not require notification of proposals to each tenant
R v Secretary of State for the Environment ex p Walters (1998) 30 HLR 328, CA (HLC 4th edition, E4.3)
Inadequate consultation of tenants; Secretary of state’s consent wrong in law; refusal of relief
Short v Tower Hamlets LBC (1986) 18 HLR 171, CA (HLC 4th edition, E4.4)
A decision ‘in principle’ did not require consultation
R v Gateshead MBC ex p Smith (Duncan) (1999) 31 HLR 97, QBD (HLC 4th edition, E4.5)
Lawful decision despite ‘somewhat false picture’ of consultation results presented
R (Beale and Carty) v Camden LBC [2004] EWHC 6 (Admin); [2004] LGR 291; [2004] HLR 48 (HLC 4th edition, E4.6)
Section 105 duty is to inform; no requirement to set out arguments against proposals
See too R (Bath) v North Somerset Council [2008] EWHC 630 (Admin), 4 April 2008; [2009] HLR 1 (a case involving a large-scale voluntary transfer to a registered social landlord).
Home loss and disturbance payments
 
The Land Compensation Act 1973 gives tenants the right to apply for disturbance and/or home loss payments in certain circumstances where they are displaced. There have been no cases in the higher courts in which these provisions have been considered since publication of the third edition of Housing Law Casebook. In view of this, those cases have not been reproduced in subsequent editions – readers are referred to the third edition, cases E40.1 to E40.6.
CHAPTER G
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