Mendoza v Ghaidan [2002] EWCA Civ 1533

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Mendoza v Ghaidan

[2002] EWCA Civ 1533

COURT OF APPEAL (CIVIL DIVISION)

KENNEDY, BUXTON, KEENE LJJ

5 NOVEMBER 2002

5 NOVEMBER 2002

P Staddon for the Appellant

J Small for the Respondent

R Singh QC for the intervener Stonewall

Oliver Fisher; Hugh Cartwright & Amin; Bindman & Partners

BUXTON LJ

[1] We are required in this appeal to revisit, in the light of the European Convention on Human Rights [the Convention] and the Human Rights Act 1998 [the HRA], the decision of the House of Lords in Fitzpatrick v Sterling Housing Association [2001] 1 AC 27, [1999] 4 All ER 705.

[2] The House was called on to construe paras 2 and 3 of Sch 1 to the Rent Act 1977, as amended:

“2(1) The surviving spouse (if any) of the original tenant, if residing in the dwelling-house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling-house as his or her residence. (2) For the purposes of this paragraph, a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant.

3(1) Where para 2 above does not apply, but a person who was a member of the original tenant’s family was residing with him in the dwelling-house at the time of and for the period of two years immediately before his death then, after his death, that person . . . shall be entitled to an assured tenancy of the dwelling-house by succession.”

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