30 March, 2022
The case of Clarion Housing Association Limited v Carter  EWHC 2890 [QB] involved an unsuccessful appeal brought by Clarion against the County Court's decision to dismiss their possession claim. Clarion issued possession proceedings against the deceased tenant's daughter Ms Carter, who had continued to reside at the Property after her mother's death.
The deceased tenant had originally entered into a secure tenancy of the property in 1987 before eventually becoming an assured tenant with Clarion. Ms Carter moved into the property to act as her mother's carer in October 2004.
Upon her mother's death in 2017 Ms Carter asked if she could buy the property, but this was refused by Clarion and Notice to Quit was served to terminate her mother's tenancy. Clarion considered whether Ms Carter could succeed but concluded that there was no statutory or contractual right of succession and even if she did have a contractual right, she could not rely on those terms as she was not a party to the contract (privity of contract). Clarion served 2 further Notices to Quit and a Ground 7 Notice of Seeking before issuing possession.
In the first instance, Ms Carter successfully defended the possession proceedings. The Judge found the legal title had passed to the Public Trustee who held the tenancy on trust for any beneficiary under the rules of intestacy. Ms Carter was such a beneficiary, was in occupation of the property, and became entitled to the tenancy in equity, becoming an assured tenant immediately upon her mother's death.
On appeal Mr Justice Kerr disagreed that Ms Carter should be considered an assured tenant in equity under the law of intestacy, and he agreed with Clarion that Ms Carter was not entitled to statutorily succeed to the tenancy.
However, he did consider that Ms Carter was entitled to contractually succeed. She had made a written application and provided evidence that the property was her main or principal home at the time of her mother's death. He also concluded that Ms Carter was the beneficiary of a trust of the promise made by Clarion's predecessor. The equitable exception to the doctrine of privity of contract was made out and therefore Ms Carter was entitled to rely on the succession terms in the tenancy regardless of the fact that she herself was not a party to it.
Furthermore, he felt that Ms Carter's public law defence was made out and the notice to quit and the decision to bring ground 7 possession proceedings was 'unlawful, tainted as they were by illegality and procedural unfairness.
Clarion's appeal was dismissed.
This case highlights the need for local authorities and social landlords to carefully consider the merits of every request to succeed and to approach each case with an open mind, having considered all available evidence. Clear records should be kept as to how decisions are reached, and clear reasons should be provided to would be successors as to how and why a decision has been reached. The case also demonstrates the clear need for housing providers to carefully consider and comply with its own internal policies.
In this case Clarion were particularly thrown by the fact that Ms Carter owned her own home, which on the face it would suggest a need to refuse succession. However, it was found in this case that had Clarion applied its own policy correctly it was highly likely that Ms Carter's right to succeed would have been recognised and the claim would not have been brought.
Rachel Rann, Paralegal, Housing and Regeneration Department (Litigation)
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