Protected tenancy — Husband and wife — Wife left property — Injunction to prevent wife excluding husband from property — Wife serving notice to quit — Council seeking possession — Husband claiming wife in breach of injunction — County court refusing possession claim — Majority of Court of Appeal dismissing appeal against refusal
The defendant and his wife, under a joint weekly tenancy beginning April 3 1987, rented a two-bedroomed council property at 5 Waghorn Road, Kenton, Middlesex, protected under Part IV of the Housing Act 1985. The wife later left the property. On February 3 1994 the defendant obtained an injunction against his wife forbidding her from excluding him from the property. The injunction was to remain in force until further order of the court. It was never discharged. The defendant remained in occupation. The council decided to rehouse the wife and her children and in accordance with their policy they required the wife first to terminate the joint tenancy. She purported to do so by service of a notice to quit.
The council applied for possession in the county court. They became aware of the injunction in April 1994 at the latest. At the hearing the defendant claimed that his wife was in breach of the injunction when she served the notice to quit. The judge dismissed the application for possession. He held, first, that the wife’s notice was not genuine; second, that it was not valid because the terms of the tenancy agreement required both joint tenants to give notice; and, third, the wife was in breach of the injunction, aided and abetted by the council. The council appealed. Counsel for the appellants, as well as for the defendant, did not appear below.
Held The appeal was dismissed by a majority.
1. A joint periodic tenancy could be determined by notice to quit given by one joint tenant without the concurrence of the other: see Hammersmith and Fulham London Borough Council v Monk [1992] 1 EGLR 65.
2. However, the wife was in contempt of court when she served the notice to quit because that was a step in the course of evicting the husband from the matrimonial home, contrary to the terms of the injunction.
3. The council were also in contempt in that, with knowledge of the injunction, they sought possession of the property although the defendant was protected from eviction at the suit of his wife. The fact that the council were not party to the obtaining of the injunction was not to the point. The institution of the proceedings involved an interference with the administration of justice in the sense that those proceedings sought to achieve a result which, while the injunction remained in force, was not open to the wife who was an essential link in the action of the council seeking possession.
4. The notice to quit given by the wife could not be relied upon as determining the tenancy by either the wife or by the council so long as the injunction was extant. Accordingly, the judge was entitled on the material before him to refuse the council’s claim for possession.
5. Per Hobhouse LJ dissenting: The judge should not have dismissed the council’s action. The wife’s notice did not relate to excluding the husband from the property. It related to regularising her own position establishing her unwillingness to continue as a joint tenant or further extend the period of the joint tenancy. She was not in breach of the injunction.
Frank Feehan (instructed by the solicitor to Harrow London Borough Council) appeared for the council; Adrian Jack (instructed by Rosenbergs) appeared for the defendant.
