Same-sex relationships and the discrimination of landlords under death of secured tenants, provokes the wisdom of the judiciary when the progressive interpretation of existing statute is the only salient answer to a claim for devolved rights by the freeholder.
After living together in a committed homosexual relationship for over thirty years, the respondent had been left facing continued occupancy of the flat under the terms of an assured rather than secure tenancy following the death of his partner and secure tenant, thus by falling subject to the lesser of the two tenancies, the respondent had become vulnerable to potentially increased rents and no legal rights to challenge repossession should the freeholder decide to remove him.
Having sought enforcement under sch.2 para.1 of the Rent Act 1977 the appellant landlord argued that same-sex relationships were precluded from the enjoyment of direct succession of statutory tenancy as prescribed, however those surviving death could remain in occupation under an assured tenancy, as was held in Fitzpatrick v Sterling Housing Association Ltd.
Whereupon the respondent argued that as that case was raised prior to the Human Rights Act 1998 (HRA), devolution of rights through the application of the 1977 Act constituted a direct violation of arts.8 (Right to respect for private and family life) and 14 (Prohibition of discrimination) of the European Convention on Human Rights (ECHR), therefore he was free to remain in occupation under the same rights bestowed those in sch.1 paras.1, 2 and 3 of the 1977 Act, which stated that:
“1.Paragraph 2 or, as the case may be, paragraph 3 below shall have effect, subject to section 2(3) of this Act, for the purpose of determining who is the statutory tenant of a dwelling-house by succession after the death of the person (in this Part of this Schedule referred to as “the original tenant”) who, immediately before his death, was a protected tenant of the dwelling-house or the statutory tenant of it by virtue of his previous protected tenancy.
2. If the original tenant was a man who died leaving a widow who was residing with him at his death then, after his death, the widow shall be the statutory tenant if and so long as she occupies the dwelling-house as her residence.
3. Where paragraph 2 above does not apply, but a person who was a member of the original tenant’s family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence.”
Historically the courts viewed para.3 of the Rent Act 1977 as designed to treat unmarried women as family members in order to allow assured tenancies to permit continuous occupancy when no marriage or family previously existed, however Fitzpatrick widened the scope of entitlement when the House of Lords had held that:
“[T]wo people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.”
In the first hearing the court awarded for the respondent on principle that overt discrimination was not a virtue welcome in English law, while the Court of Appeal upheld the previous judgment before the matter wound up before the House of Lords.
Here the facts were given equal attention before the House dismissed the appeal on grounds that the time was right to embrace the universal nature of close and loving bonds and the freedoms of the Convention without a need for Parliamentary involvement, while further holding that:
“[T]he social policy underlying the 1988 extension of security of tenure under paragraph 2 to the survivor of couples living together as husband and wife is equally applicable to the survivor of homosexual couples living together in a close and stable relationship.”