The Court of Appeal (CoA) had to answer whether a family member of a secure tenant has the right to buy posthumously under the Housing Act 1985.

Background:

Mrs. Laura Howe was the secure tenant of a council house in Wembley. On the 11th of May 2020, Mrs. Howe sent the Council a Section 122(1) Housing Act 1985 notice, including a completed and signed right-to-buy form claiming the right to buy the property jointly with her adult son John. The Council received the notice on the 18th of May. Mr. Howe was however not a joint tenant with his mother, but he had been living at the property as his main home for over 12 months before she sought to exercise her right to buy.

On the 21st of May 2020, the Council served a Section 124 notice admitting Mrs. Howe's right to buy but denying that John Howe was entitled to share that right with her because he did not meet the qualifying residence conditions. On the 25th of May, shortly after the Council's response was received, Mrs. Howe died.

On the 2nd of June 2020, not yet knowing of Mrs. Howe's death, the Council sent a letter addressed to both stating that it had removed Mr. Howe's name from the application because it maintained the view that he could not satisfy the residence requirements. After the Council became aware of Mrs Howe's death, it sent a further letter to Mr. Howe on the 20th of July 2020 asserting that, as a consequence of her death, the original right-to-buy claim had been withdrawn.

Mr. Howe applied to the County Court which upheld his right to buy. Brent London Borough Council appealed and the appeal was escalated to the CoA.

Decision:

The CoA dismissed the appeal, finding that the County Court was correct and Mr. Howe was entitled to continue the right-to-buy process. The Court found that the statutory provisions allowed a family member to be deemed a joint tenant if they met the residence requirements at the time the notice was served and that the right-to-buy was established at the time of the notice if the statutory conditions were met. This did not depend on the landlord’s acceptance or the original tenant being alive. As the Court found “If as a matter of fact, B met the requirements of Section 123(1) at the time when A served a notice on the landlord under Section 122(1) validly requiring that B share A’s right-to-buy, B was deemed, from that time onwards, to be a joint secure tenant with A for the purposes of Part V and shared in the right-to-buy, even if B’s qualifying status was not established until after A’s death.”

Implications:

This decision makes it clear that, so long as a family member meets the criteria delineated in Section 123(1) of the Housing Act 1985, they could join a right-to-buy claim. The qualifying date arises when the notice is served and does not depend on the landlord’s acceptance or the secure tenant’s continued survival. This judgement ensures that the rights of family members who meet the prerequisite criteria are preserved, even when the original tenant dies after initiating the right-to-buy process.
In specific circumstances, this allows a family member who might have lived with their parents for some time to retain the domicile by buying it.