Secure joint tenancy – Termination – Human rights – Appellant and wife having secure periodic joint tenancy of residential property – Wife terminating tenancy by serving unilateral notice on respondent council – Court making possession order in favour of respondents – Whether European Convention on Human Rights requiring English law to recognise appellants’ right to sole tenancy of property as his home – Appeal dismissed – Permission to appeal refused
A property dispute arose on the marriage breakdown of two joint tenants, who were entitled to a secure periodic tenancy of residential property let by the respondent public authority. A possession order was made by a district judge in the county court on the basis that the wife had validly terminated the joint tenancy by notice to the respondent council. The possession order was stayed pending an appeal.
In accordance with well-established principles of contract and property law, settled by the House of Lords in Hammersmith and Fulham London Borough Council v Monk [1992] 1 EGLR 65; [1992] 09 EG 135, there was no longer in legal existence any tenancy under which the appellant husband could claim the right to occupy the property as a secure tenant jointly, solely or in any other recognised legal capacity.
The appellant appealed against the order for possession, acknowledging that the Court of Appeal would have to dismiss it since that court was bound by the decision in Monk. The question was whether that court should grant permission to appeal to the Supreme Court and stay the possession order to enable the appellant to challenge, under the Human Rights Act 1998, the compatibility with the European Convention on Human Rights (ECHR) of the current state of the law on the termination of periodic joint tenancies of residential property.
The appellant contended that, in order to achieve compatibility with article 8 of and article 1 of the First Protocol to the ECHR and the 1998 Act, English law was required to recognise that he had a sole tenancy of the property as his home, following his wife’s termination of the joint tenancy by unilateral notice.
Held: The appeal was dismissed. Permission to appeal was refused.
(1) The ECHR challenge was solely about the compatibility of the rule in Monk with article 8 and article 1 of the First Protocol, not the engagement of those articles by the respondents’ possession proceedings against the appellant, nor was it about whether such proceedings were justifiable by the respondents.
(2) The sole aim of the appeal was to enhance property rights conferred by contract by securing for the appellant a sole tenancy of the respondents’ property without the concurrence of the respondents as owners of the property. If the appellant was right, the appellant would acquire, by force of ECHR law, and in the absence of any agreement with the owner of the property, greater and different property and contract rights binding on the respondents than he and his wife had originally acquired from the respondents by agreement. He was aiming, by use of the ECHR, to obtain a tenancy of a three bedroom family house for himself in place of the joint tenancy of a family home which the respondents had originally granted. That was interference with the respondents’ enjoyment of their possessions than interference by the respondents with the possessions of the appellant.
(3) Article 8 was not engaged. Monk had laid down a substantive rule of property and contract law under which one joint tenant had the right to serve notice unilaterally terminating a periodic joint tenancy. The wife had exercised her right. There was nothing in the legal rule per se or in its exercise by the wife that was an interference by her or by the respondents with respect for the home of the appellant.
(4) Furthermore, art. 1 of the First Protocol was not engaged. As the rule in Monk was a proprietary and contractual legal right inherent in the joint tenancy of the property granted by the respondents to the appellant and his wife and the notice given by the wife to the respondents was in exercise of her rights as a joint tenant, there was no interference by her or by the respondents with the enjoyment of the possessions of the appellant. His relevant possession was an interest in a joint tenancy that was, by its very nature, terminable unilaterally by either joint tenant. The respondents’ role was simply as recipient of the notice given to it by the wife terminating the joint tenancy. The respondents themselves did nothing in relation to the termination of the joint tenancy that could be described as an interference with the peaceable enjoyment by the appellant of the property.
(5) Finally, there was no incompatibility between the rules of English property and contract law relating to the termination of a joint tenancy by one joint tenant and the ECHR. No sensible purpose would be served by the expenditure of yet more public funds on a repeat of that debate before five or more Supreme Court justices.
Andrew Arden QC and Toby Vanhegan (instructed by Arkwrights Solicitors, of Watford) appeared for the appellant; Andrew Lane and Dean M Underwood (instructed by Dacorum Borough Council Legal, Democratic and Regulatory Department)) appeared for the respondents.
Eileen O’Grady, barrister
