Queen’s Bench Division

Published June 29, 2007

Islington London Borough Council v Honeygan-Green

Before Mr Justice Nelson

Judgment May 25, 2007

A council tenant could not exercise her right to buy her home if she fell into rent arrears before making the purchase but after the right had been granted. Even if the arrears were later paid off, she had to make a fresh application.

Mr Justice Nelson so held in the Queen’s Bench Division in a reserved judgment when allowing Islington London Borough Council’s appeal against the decision of Judge Marr-Johnson on April 28, 2006 to grant Manelva Honeygan-Green an injunction ordering the council to convey to her the long lease of the council property of which she was a tenant.

After the council granted her application to purchase her property, Mrs Honeygan-Green’s secure tenancy was terminated because of rent arrears and she became a tolerated trespasser. When the arrears were cleared, the secure tenancy was revived.

Mr Iain Colville for the council; Mr Adrian Jack for Mrs Honeygan-Green.

MR JUSTICE NELSON said that the central issue what the effect of the tenancy being revived was.

It was accepted that the right to buy still existed but did the original application survive the possession order and determination of the tenancy, or was it abrogated so that the tenant had to make a fresh application under section 122 of the Housing Act 1985 and hence lose an earlier favourable valuation?

At the time of Mrs Honeygan-Green’s application for an injunction she had failed to pay the rent due under her revived tenancy for longer than four weeks after it had been lawfully demanded from her.

Under section 138(2), until the whole of that payment had been made the landlord was not bound to comply with section 138(1), as amended by section 187(2) of, and Schedule 22 to the Leasehold Reform, Housing and Urban Development Act 1993.

The landlord was not therefore under a duty to grant the lease; hence that duty could not be enforceable by injunction at that stage.

Section 121 of the 1985 Act, as amended by section 235(3) of, and Part III of Schedule 10 to the Insolvency Act 1985, and by section 192(1) of the Housing Act 2004, laid down certain circumstances in which the right to buy could not be exercised or ceased to be exercisable.

The effect of section 121 was to cause any existing claim to exercise the right to buy in relation to the dwelling house to cease to be effective. The revival of the tenancy did not revive the earlier application which had established the right to buy the property.

The key to the interpretation of section 121 was that the right to buy was exercisable only through an application or claim under the statutory scheme. If the right to buy could not be exercised or ceased to be exercisable, then the application or claim which established that right to buy must also cease to be exercisable.

Solicitors: Ms Louise Round, Islington; Wilson Barca, Upper Holloway.

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