Possession v Right to Buy

Basildon District Council v Wahlen CA TLR 17 April

Where a secure tenant occupies a property with members of his family then, on the death of the secure tenant, Part IV of the Housing Act 1985 contained provisions whereby one or more of such members might succeed to the tenancy. Section 84 precludes the local authority from obtaining possession against the secure tenant, unless it can establish one of the grounds set out in Schedule II to the Act. The statute itself gives rise to a clash of competing claims. Section 12(1) provides no warrant for giving precedence to the council’s claim for possession over the tenant’s right to buy under s138(1), and s138(1) is silent as to the effect of an outstanding claim for possession on the obligation of the landlord to grant an interest in the dwelling house. The district judge had concluded that because the provisions of s138(1) had been fulfilled, the council had a duty to make a grant of the freehold to the tenant. He believed that he had no alternative but to grant the tenant an injunction and dismissed the council’s claim for possession. He was mistaken. It was clear that he had not carried out a balancing exercise. He made no reference to the council’s competing claim. The case was remitted to a different judge to carry out the balancing exercise.