Court of Appeal

Published April 28, 2008

Islington London Borough Council v Honeygan-Green

Before Lord Justice Pill, Lord Justice Keene and Lord Justice Maurice Kay Judgment April 22, 2008

An order for possession made against a secure tenant did not defeat her right to acquire a long lease of a tenanted flat; if the possession order had been discharged the tenant’s right to acquire revived.

The Court of Appeal so atetd in a reserved judgment allowing the appeal of Manelva Honeygan-Green from Mr Justice Nelson (The Times June 29, 2007; [2007] 4 All ER 818) who had held that, under section 121 of the Housing Act 1985, the right to buy ceased to be exercisable if a possession order was made and allowed the appeal of Islington London Borough Council from the decision of Judge Marr-Johnson at Clerkenwell and Shoreditch County Court, on April 28, 2006, to grant the tenant an injunction ordering the council to convey to her the long lease of the council property of which she had been a tenant.

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

Mr Adrian Jack for the tenant; Mr Iain Colville for Islington.

LORD JUSTICE KEENE said that it seemed to be implicit in Burrows v Brent London Borough Council (The Times July 21, 1995; [1996] 1 WLR 1448) that, while a tenant could not sue for breach of a landlord’s covenant while the tenancy was in the state of limbo, if and when the secure tenancy revived, its covenants likewise revived and were to be treated as having been in existence during the limbo period.

Thus it would follow that the tenant could bring an action after such revival for breaches of covenant which had taken place during the limbo period.

So when it was said that the tenancy and its covenants revived with retrospective effect when a possession order was discharged, that meant that both the expressly agreed covenants and the statutorily implied ones revived and were to be treated as having been continuously in existence, even during the limbo period.

Given the retrospective nature of the revival of the secure tenancy, even to the extent of allowing a claim for damages for a breach of covenant occurring during the limbo period, it seemed right to approach the present issue by asking whether there was any reason why an accrued right to buy, under section 124, should not be revived along with the tenancy and its covenants.

The wording used in that provision was different from that in section 121, presumably deliberately so, and one could see reasons why Parliament might have chosen to treat tenants who behaved in such a fashion or who used the premises for unlawful purposes in a harsher manner.

But if the secure tenancy was revived by a court order before possession was given up, the accrued steps taken before the limbo period ensued revive with the tenancy, subject to any contrary decision of the court. The tenant did not need to begin the right-to-buy process again by serving a fresh section 122 notice. Lord Justice Maurice Kay and Lord Justice Pill agreed.

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

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