Defences to possession claims on the death of a tenant are limited. Social tenancies are valuable assets and rights of succession are limited so that tenancies are not passed down from generation to generation indefinitely.
Where there has already been one succession, or there is no right to succeed, article 8 (respect for private and family life) is one of the only grounds for an occupier wishing to defend a possession claim. Invariably the occupier’s length of residence is relied upon as one of the grounds, even the main ground, upon which article 8 is said to have been breached. The Court of Appeal considered the relevance of an occupier’s length of residence in their circumstances in Hillingdon LBC v Holley  EWCA Civ 1052.
Mr Holley’s grandmother was the secure tenant of a three-bedroom house until her death, upon which her husband (Mr Holley’s grandfather), succeeded to the tenancy under the provisions of the Housing Act 1985. Upon his death, the Local Authority commenced proceedings for possession. Mr Holley occupied the property with his brother, who had moved in to support him after Mr Holley developed a mental health illness.
In defending the claim, Mr Holley relied upon article 8. He claimed that the possession claim amounted to an unlawful interference with his article 8 rights because he had lived in the property all of his life.
The Court of Appeal’s decision
The Court of Appeal held that the period of residence will not on its own be sufficient to establish an article 8 defence. If it would, the Court said, it would be hard to see how the English statutory prohibition on second successions could be compatible with the European Convention on Human Rights.
Although the length of residence may form part of an overall proportionality assessment, in the sense that all of the circumstances of the case may need to be reviewed and their effect on the circumstances considered as a whole, the length of residence is unlikely to be a factor that carries much weight in striking the necessary proportionality balance when determining an article 8 defence. A long period of residence will therefore form part of the circumstances, but, when considered in isolation, is ‘of little consequence’.
The Court of Appeal’s decision is another example of the Courts giving article 8 a narrow application, given the exceptionally high threshold that must be established for such a defence to be seriously arguable in these sorts of cases. The property in this case was severely under-occupied by Mr Holley and his brother, and could have accommodated a family of six, a fact that did not go unnoticed by the Court. In times where social housing is increasingly scarce and waiting lists growing longer, the decision evidences the Courts’ recognition that housing providers are best placed to maximise use of their housing stock where rights of succession are unavailable.