“(2) Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person …. (3) Where there is no person qualified to succeed the tenant, the tenancy ceases to be a secure tenancy …”
“113. Members of a person's family (1) A person is a member of another's family within the meaning of this Part if— (a) he is the spouse or civil partner of that person, or he and that person live together as husband and wife or as if they were civil partners, or (b) he is that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. (2) For the purpose of subsection (1)(b)— (a) a relationship by marriage or civil partnership shall be treated as a relationship by blood, (b) a relationship of the half-blood shall be treated as a relationship of the whole blood, (c) the stepchild of a person shall be treated as his child, and (d) an illegitimate child shall be treated as the legitimate child of his mother and reputed father.” (a) he is the spouse or civil partner of that person, or he and that person live together as husband and wife or as if they were civil partners, or (b) he is that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. (a) a relationship by marriage or civil partnership shall be treated as a relationship by blood, (b) a relationship of the half-blood shall be treated as a relationship of the whole blood, (c) the stepchild of a person shall be treated as his child, and (d) an illegitimate child shall be treated as the legitimate child of his mother and reputed father.”
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection or health or morals, or for the protection of the rights and freedoms of others.”
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. …”
“It seems to me that "members of the tenant's family" within s. 12, sub-s. 1 (g) of the Act of 1920, include not only legitimate children but also step-children, illegitimate children and adopted children, whether adopted in due form of law or not.”
“Given, on the basis of these earlier decisions that the word is to be applied flexibly, and does not cover only legally binding relationships, it is necessary to ask what are its characteristics in this legislation and to answer that question to ask further what was Parliament's purpose. … The hall marks of the relationship were essentially that there should be a degree of mutual inter-dependence, of the sharing of lives, of caring and love, of commitment and support. In respect of legal relationships these are presumed, though evidently are not always present as the family law and criminal courts know only too well. In de facto relationships these are capable, if proved, of creating membership of the tenant's family. If, as I consider, this was the purpose of the legislation, the question is then who in 1994 or today (I draw no distinction between them) are capable in law of being members of the tenant's family.”
“In other statutes, in other contexts, the words may have a wider or a narrower meaning than here.”
“There are differences between this legislation and the Housing Acts dealing with public sector housing … The language chosen for this purpose was the undefined expression “family”
“The language chosen for this purpose was the undefined expression “family”
“ Family is a word with several different meanings. … The present context is statutory protection of a dwelling house that is a family home. On the death of the tenant his family cannot be evicted without further ado. Herein lies the key to the meaning of family in this context. The key is the statutory juxtaposition of membership of the tenant’s family and residence with the tenant. The legislation seeks to provide a measure of protection for members of a family who are sharing their lives together as a single family in one home”
“12. … In my judgment the editors of the Housing Law Reports were correct when in their introductory note to Harrogate Borough Council v Simpson they wrote at p. 205, in relation tos 50(3) of the Housing Act 1980 : “In defining the term ['member of family'] statutorily, Parliament clearly sought to distance itself from the case law which had grown up around the term under the Rent Acts: see nowRent Act 1977 section 2 and Sch 1, Part I. In that Act, the same term 'member of family' is used, but not defined, and reliance is placed on earlier judicial definitions.” … 14. It is clear to me that in abandoning the potentially open-ended phrase “member of the tenant's family” by inserting the explanatory section 113 which shows what type of relative is embraced by that phrase, Parliament intended to achieve certainty, a quality which is very desirable in the arena of local authority housing with which these statutory provisions are concerned. Although, as Mr Luba argued, a rigid list may lead to unfairnesses at the edges, its introduction leads to clarity and the avoidance of costly and time-consuming litigation as to who is and who is not a member of the tenant's family for this purpose. Section 113 makes the position clear.”
“41. It appears to me that this is pre-eminently a field in which the courts should defer to the decisions taken by a democratically elected Parliament, which has determined the manner in which public resources should be allocated for local authority housing on preferential terms. Parliament decided to continue to adopt the Rent Act concept of “a member of the tenant's family” when identifying who might succeed to a secure tenancy, but to introduce a measure of legal certainty, a concept prized by Strasbourg, when explaining with precision the type of close relative who should be entitled to be the first (and only) successor to a secure tenancy. It is understandable why Parliament wished a home not to be broken up on the death of a secure tenant when his wife or other very close relative was living with him as a member of his family at that time. It is equally understandable why Parliament decided that this privilege should not be extended to a more distant relative like Mr Michalak who was living at the secure tenant's home at the time of his death.”
“63. … The reality is that Parliament has, in the provisions of sections 87 and 113, considered and determined the extent to which those residing with a secure tenant should be entitled to succeed to the benefits of a secure tenancy. Outside the categories of spouse and member of the tenant's family, as defined, others residing were not to succeed to any secure tenancy, and Parliament necessarily contemplated that the dwelling-house would become available once again to the relevant local authority for use in the ordinary way, as it should determine.”
“It is plain that Parliament had to strike a balance between security of tenure and the wider need for systematic allocation of the local authority's housing resources in circumstances where those housing resources are not unlimited. The striking of such a balance is pre-eminently a matter of policy for the legislature. The court should respect the legislative judgment as to what is in the general interest unless that judgment was manifestly without reasonable foundation.”
“13… In summary, the question for decision before Hornby J., and before us, is whether the setting-aside order had the effect of resuscitating the secure tenancy which the original possession order, and subsequent execution by eviction, had apparently brought to an end.” “16… As Mr Short accepted, without a successful appeal against the order, or a stay pending appeal, or an order to set it aside, the plaintiff's secure tenancy had been brought to an end and the order for possession enforced by his eviction. The setting aside order, and its effects, provided the significant features of his argument.”
“18… the logical conclusion of Mr Short's argument would be that these premises were the subject of two secure tenancies under the 1985 Act, each simultaneously providing identical, but mutually contradictory rights between two separate individuals. This would be a nonsense. The effect of the statutory provisions governing Mr Ahmed's tenancy is such that the priorities between the conflicting claims cannot be determined simply by asking which of the tenancies came first, and jumping to the conclusion that the second tenancy must have taken effect subject to the plaintiff's, at best, dormant entitlement to revive his tenancy by a successful application to set aside the original order, or a successful appeal. The decision not to proceed with the claim for trespass against Mr Ahmed was right. He enjoyed an immediate right to possession of the premises. He also enjoyed the benefit of the covenant of quiet enjoyment. Despite Mr Short's argument, I cannot envisage the basis on which Brent could possibly owe an obligation to the plaintiff concurrently to abide by the same covenant of quiet enjoyment in respect of the same premises.”
"Can an action for trespass, and/or breach of covenant for quiet enjoyment, and/or derogation from grant, be maintained by a tenant against his landlord who has entered on to demised premises and excluded the tenant therefrom following the making of an order for possession in forfeiture proceedings by a High Court judge whose decision is subsequently reversed by the Court of Appeal?"
“[23] The principle described by Lord Diplock as "short and well established" is that an order "made by a court of unlimited jurisdiction ... must be obeyed unless and until it has been set aside by the court". Later, when he recorded the distinction between orders set aside on application to the court which made them and those set aside by an appellate court, he did not suggest that these distinctions had any relevant bearing or imposed any gloss on the principle. This is entirely consistent with the familiar field of interlocutory injunctions granted ex parte. An injunction may be discharged by an application to the court which made the original order. If that court decides that the injunction should not be discharged then, if necessary, the issue is resolved in the Court of Appeal. The order must be obeyed unless and until it is discharged.”
“[24] … Where, as here, the interests of a third party become involved, emphasis is added to what the Vice Chancellor identified as "the risk of very great confusion. People must be entitled to act in pursuance of a court order without being at risk that they are thereby acting unlawfully. Public policy requires it".”
“[27]… Certainly Mr Ahmed's tenancy, lawful at its outset, was not rendered "null and void" by the setting aside order, and to my mind, while he enjoyed the rights of the tenant at the premises, including the benefit of the covenant of quiet enjoyment, the plaintiff did not.”
“[3] The secure tenancy, like the statutory tenancy in the private sector, can be terminated only by an order of a county court made on one of a list of specified grounds. But the technique by which secure tenancies are integrated into the ordinary law of landlord and tenant is very different from that which was used in the Rent Acts more than 60 years earlier. The old legislation had left untouched the landlord's right to determine a contractual tenancy by notice or otherwise in accordance with its terms and the general law. It provided that, on such termination, the tenant acquired a new interest which is now called a statutory tenancy. The 1980 Act, on the other hand, preserved the contractual tenancy. It merely added statutory incidents to that tenancy which overrode some of the contractual terms. These overriding provisions include the provisions which prevent it from being terminated except by an order of the court on the statutory grounds.” “[4] The method adopted by the 1980 Act to deal with transmissions is different. It reflects the fact that a secure tenancy is different in nature from a statutory tenancy. Whereas the statutory tenancy is unassignable, not an estate in land but a mere "personal right of occupation" (see Lord Greene MR in Carter v SU Carburetter Co[1942] 2 KB 288 , 291), a secure tenancy is an orthodox estate in land which, subject to specific restrictions in the 1980 Act, can be assigned, held in joint names, pass by survivorship and be disposed of by will on death. Thus, while a statutory tenancy can pass from one person to another only in very limited circumstances (such as the statutory transmission on death or by a court order on divorce) a secure tenancy can in principle pass in any way permissible at common law. ”
“[10] … There is no need for a successor to make an application under s 89. Any vesting is automatic. Where there is no successor, the tenancy does not automatically cease to be a secure tenancy at the death of the tenant. If there is no person who is qualified to succeed to the tenancy, it does not cease to be secure until that time specified in s 89(3) arrives. When it ceases to be a secure tenancy, it becomes a contractual tenancy only.”
“A. Absence by the tenant may be sufficiently prolonged or unintermittent to compel the inference, prima facie, of a cesser of possession or occupation. The question is one of fact and degree. B. Assuming an absence sufficiently prolonged to have this effect: 1. The onus is on the tenant to repel the presumption that his possession has ceased. 2. In order to repel it he must at all events establish a de facto intention on his part to return after his absence. 3. While there is no set limit to the length of absence, the tenant must be able to demonstrate a ‘practical possibility‘ or ‘a real possibility’ of the fulfilment of his intention to return within a reasonable time. 4. The tenant must also show that his inward intention is accompanied by some formal, outward and visible sign of this intention to return, which sign must be sufficiently substantial and permanent that in all the circumstances it is adequate to rebut the presumption that the tenant, by being physically absent from the premises for a prolonged period, has ceased to be in possession of it.”
“6.018 Nature of Concurrent Leases A concurrent or overriding lease is one granted subject to and with the benefit of a lease which is already in existence. The term of the concurrent lease begins before the expiration or other determination of the existing lease. Such a lease is said to take effect in reversion expectant upon the earlier term, which may be either shorter or longer than the concurrent term. Although the overriding lease does not carry with it the right to immediate physical possession of the property comprised in the lease, it does confer on the lessee the immediate right to the rents and profits of the land as from the beginning of the concurrent or overriding term. As from that date the concurrent term operates as an assignment of the reversion during such time as the two terms run concurrently. …. Any number of concurrent terms may take effect as legal estates; for “term of years absolute” includes a term of years subject to another legal estate.”
“There was no contractual relationship between the [plaintiff] and Ms Jackson. There was, however, such a relationship between the [plaintiff] and Wandsworth and that was what the notice to quit was designed to end. I would hold it effective for the purpose.”