Property – Law No Extra Branches on the Family Tree

By : Edward Rowntree

Until a recent challenge, there had been no reported case in which the list of family members qualifying to ‘inherit’ a secure tenancy on the death of the tenant was held to be other than exhaustive.

In the recent cases of Wandsworth London Borough Council v Michalak [2003] 1 WLR and R (on application of Mays) v L B of Brent 3 March 2003 the Courts have rejected attempts to use human rights as a means of extending the rights of succession in the context of secure tenancies beyond the clear words of the statutory scheme. Mr. Michalak arguments were based on both construction of the relevant sections of the Housing Act 1985 and pursuant to the Human Rights Act 1998 in his attempt to retain possession of his residence.

The secure tenant of the property, a Mr. Lul, was the brother-in-law of Mr. Michalak’s first cousin once removed. Upon the death of Mr. Lul, the Council succeeded in obtaining an order for possession. Mr. Michalak appealed, contending that as a member of Mr. Lul’s family he was entitled to succeed to the tenancy pursuant to section 87 of the 1985 Act. He further maintained that his right to respect for his family and his home was being interfered with contrary to Article 8 of the Convention.

The perhaps unsurprising rejection by the Court of Appeal of both limbs of the argument clarified the position for the future. In the Mays case the Administrative Court adopted a consistent stance.

The first line of argument in the Michalak matter hit the impenetrable barrier posed by section 113 of the 1985 Act which provides that “A person is a member of another’s family within the meaning of this Part if (a) he is the spouse of that person, or he and that person live together as man and wife or (b) he is that person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.” Brooke LJ concluded without difficulty that by abandoning the open-ended phrase “member of the tenant’s family” and inserting the explanatory section 113 Parliament intended to achieve certainty and that the list was exhaustive.

An argument under the Human Rights Act, which was described as ingenious, also failed to find favour. Mr. Michalak contended that the fact that he had the right to respect for his home meant that Article 8 was engaged and that accordingly his legal rights should be interpreted in such a way that he would not suffer unlawful discrimination contrary to Article 14 by being evicted from the flat when persons in a similar situation would not be evicted.

In adopting a structure of four questions to deal with Article 14 issues, Brooke LJ considered that the facts of the case did fall within the ambit of one or more of the substantive Convention provisions and secondly that there were differences in the treatment afforded to Mr. Michalak on the one hand and the chosen comparators on the other.

The third question provided the sternest test for Mr. Michalak’s claim: whether or not the chosen comparators were in an analogous position. Of the two comparators, the first, that a person as distantly related as Mr. Michalak was to Mr. Lul would now be treated as a member of Mr. Lul’s family in a Rent Act context, was not considered to be sufficiently similar on account of the significant differences between the two types of tenancy. The second, based on a comparison between a distant relative and a close relative under section 113, did however pass the test. However, when considering whether or not the difference in treatment had an objective and reasonable justification and having heard evidence as to the benefits of a secure tenancy, Brooke LJ concluded that this was an area in which the courts should defer to the decisions taken by Parliament. He said that it was understandable that Parliament might wish to prevent the break-up of a close family home but did not extend the privilege to more distant relatives. He ruled that there was no discrimination of the type prohibited by Article 14.

In the Mays decision Collins J concluded that the statutory scheme would be frustrated if Article 8 provided a mechanism for those outside the scheme to secure the same benefits. Further he considered that the Court should take account of the extent of the statutory scheme which provided a proportionate justification for interference with Article 8.

These decisions makes the position considerably easier for authorities faced by potential successors not only by limiting to the exhaustive list in section 113 those who fall to be considered as inheriting a tenancy but also by clarifying the impact of Article 14 and setting out a clear structure within which Article 14 questions will be considered.