Residential tenancies

Citation

Waterson, G. and Lee, R. (2000), "Residential tenancies", Property Management, Vol. 18 No. 4. https://doi.org/10.1108/pm.2000.11318dab.007

Residential tenancies

Residential tenancies

Fitzpatrick v. Sterling Housing Association Ltd (1999) 3WLR 1113

This case addresses the interesting question as to whether it is possible under English law for a "same-sex partner" to be recognised either as the "spouse" or as a member of the tenant's family for the purpose of succeeding to a residential tenancy under one or other of the various sets of statutory provisions set out in the Rent Acts and the Housing Acts. This is not the first time that such an issue has been raised. In Harrogate v. Simpson (1984) 17 HLR 205 the court had to decide the answer to the first question at least, and was most definitely of the opinion that the meaning of the word "spouse", which did extend to so-called "common-law" relationships, did not extend to cover such relationships where these involved "same-sex partners": the court held that this was not a proper interpretation of the statutory wording and went so far as to say that if Parliament had intended the statutory provisions to be so construed then Parliament would have used very clear language to that effect.

However, times move on, and social attitudes may change, and in the instant case the House of Lords was asked not only to revisit the question which had been raised in Harrogate v. Simpson but also to consider the further possibility that the same-sex partner of the deceased tenant might be entitled to succeed to the tenancy, not as the "spouse" but simply as a member of the tenant's family living with the deceased tenant for the requisite period immediately prior to the latter's death for the purpose of succeeding to the deceased tenant's protected tenancy under the terms of Para. 2 of Schedule 1 of the Rent Act 1977 (as amended by the Housing Act 1988).

The House considered the relevant authorities at great length before deciding by a majority (Lords Hutton and Hobhouse dissenting) that, although it was agreed (as in Harrogate & Simpson) that a "same-sex partner" could not properly be regarded as a "spouse" for the purpose of exercising statutory rights of succession, the same objections did not apply to the interpretation of the words "a member of the tenant's family".

In the words of Lord Nicholls:

It is not disputed that, if a same sex partner can qualify as a member of the tenant's family, the plaintiff does in fact qualify. He and the original tenant, until the latter's death, lived together for many years in a stable homosexual relationship. The judge (at first instance) found they (had) enjoyed a very close, loving (long-term) and monogamous homosexual relationship …

On that basis said his lordship, he would allow the appeal: the appellant was indeed entitled to succeed to the tenancy in question under the Rent Act 1977. Lords Clyde and Slynn, each having undertaken his own individual review of the relevant cases, concurred.

Chelsea Yacht and Boat Co. Ltd v. Pope (2000) 22 EG 147

Here the question was whether a houseboat was sufficiently permanently attached to the land so that it might be regarded as part of the land and therefore capable of being the subject of an assured tenancy for the purposes of the Housing Act 1988. The houseboat in question was apparently secured to a floating pontoon by mooring ropes, and also had ropes going to other neighbouring houseboats as well as to an anchor and to rings in the river wall. Services were provided by pipes and cables from the pontoon which had snap-on connections. Not unnaturally, the houseboat rose and sank with the tides, and at low tide rested on the river bed. On balance, said the Court of Appeal, having regard to the degree of permanence of the attachment to the land, and to the purpose for which the attachments existed, it was not reasonable to say that the houseboat had become part of the land. Ergo, it was not capable of being subject to an assured tenancy. The court felt bound by the decision of the House of Lords in Elitestone Ltd v. Morris which involved a chalet resting upon pillars and held in position only by its own weight; another earlier case, the decision of Farquarson J in R v. Rent Officer of Nottingham Registration Area, ex p. Allen (1985) 2 EGLR 153, involving the question of whether a caravan was subject to the Rent Acts was felt not to be particularly relevant, since the main question raised in that case had been as to whether the caravan had been capable of being a "dwelling house" for the purposes of the Rent Acts, which involved rather different issues.