Housing rights

For many years Stonewall has campaigned for the right of same-sex couples to succeed to a tenancy in the event of the death of a partner. This right was finally established in the case of Antonio Godin Mendoza.

For more information about Stonewall Scotland's housing work, click here.

The Medoza case

Mr Mendoza had lived with his partner for thirty years, yet when his partner died his landlord refused to accept him as his partner and took him to court. Stonewall intervened in the case to present the human rights arguments.

The Court held:

  • That references in legislation referring to 'living together as husband and wife' had to be read under the Human Rights Act as including Article 14
  • That sexual orientation was now clearly recognised as an 'impermissable ground of discrimination'
  • That courts would not defer to Parliament where there were issues of discrimination that have 'high constitutional importance'

Mendoza is the first major gay human rights case and the first case in which the Court of Appeal has used the Human Rights Act to rewrite previous legislation.

Mendoza follows an earlier House of Lords judgment, Fitzpatrick v. Stirling Housing Association, in which the Court ruled that a same-sex partner could be considered to be a member of the tenant's family but did not say that they had the same rights as 'husband and wife'.

The Fitzpatrick case

In October 1999, in the case of Fitzpatrick v Sterling Housing Association Ltd, the Law Lords ruled that same-sex partnerships could be construed as family relationships in housing succession cases.

The facts of this case are as follows. Martin and John lived together as partners in a flat in London for some 20 years. John was the tenant of the flat, which was let under a Rent Act-protected tenancy from a private landlord. John had lived in the flat for a number of years prior to meeting Martin and they had become close friends and partners some time before they started to live together in 1976.

Unfortunately in January 1986 John had a tragic accident that left him paralysed and needing 24 hour-a-day care. Martin provided such a support for the next nine years. Sadly John died in 1994 and almost immediately Martin was told to leave by the landlords.

The law provides that only a 'spouse' or a 'member of the original tenant's family' has a right to succession in a case when a tenant dies. Martin argued that he was a member of John's family.

The Judge in a County Court, although accepting that:

 "a cohabiting relationship between members of the same sex of a permanent and stable kind would properly be regarded nowadays … as just as lasting and socially valuable a relationship as that between husband and wife"

was not prepared to regard Martin as John's spouse or a member of John's family.

The House of Lords recognised changes in attitudes between now and 1920 (when succession for what are now called regulated tenancies was first introduced). It decided that Martin had been a member of John's family: "this is the proper interpretation of the Act … that as a matter of law a same-sex partner of a deceased tenant can establish the necessary familial link." The House of Lords also called upon the parliament to "change the law to give protection to the homosexual partner of a deceased tenant."

However, it did not accept that Martin had been living with John as "husband and wife". This later development was brought about through the Mendoza case.


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