Housing trust granting husband and wife joint tenancy – Marriage breaking down – Wife serving notice to quit purporting to end joint tenancy without husband’s knowledge – Trust seeking possession – Whether notice to quit valid – Whether periodic tenancy held upon trust with joint tenants as trustees and beneficiaries – Whether wife acting in breach of trust – County court granting possession – Appeal dismissed
In December 1997 the claimant housing trust let a five-bedroom property known as 2 Landsbury House, William Morris Way, London SW6, to the defendants, a husband and wife (H and W), as joint tenants. The marriage broke down and, in May 1999, W moved out with her children. H remained in the property. W wished to obtain possession of the property and move back in with her children. In July 1999, upon advice from the claimant, she served a notice to quit upon the claimant purporting to end the joint tenancy. H was unaware that she proposed to serve the notice and took no steps to prevent her from doing so. The claimant then took possession proceedings against H, relying upon the notice to quit. H joined W as a Part 20 defendant to the proceedings and claimed damages against her. He also sought to have the notice to quit set aside.
H argued that the claimant could not rely upon the notice to quit because: (i) H and W jointly held the periodic tenancy upon trust as both trustee and beneficiary; (ii) W had acted in breach of trust, contrary to section 11 of the Trusts of Land and Appointment of Trustees Act 1996, in giving the notice without consulting H as fellow trustee and/or beneficiary; and (iii) the claimant had procured that breach of trust and, consequently, could not maintain an action for possession based upon its own wrongdoing. The county court held that the giving of a notice to quit was not a function of a trustee of land, but was simply something that might be done by one of the joint tenants in his or her own interests. Accordingly, it rejected H’s defence and granted possession. H appealed. The issue raised, inter alia, was whether the giving of a notice to quit was a function of a joint tenant trustee that required consultation with the beneficiaries.
Held: The appeal was dismissed.
There was nothing in the 1996 Act to suggest that section 11 was intended to have some wider or different impact than its predecessor, section 26(3) of the Law of Property Act 1925*. In serving a notice to quit a joint tenant was not acting as a trustee, and no duty under section 11 of the 1996 Act could arise. Giving notice merely expressed a joint tenant’s intention that he or she no longer consented to the joint tenancy. Accordingly, a joint tenant who gave notice to determine a periodic tenancy without having consulted the other was not in breach of section 11. The claimant had therefore been entitled to possession following the effective termination of the joint tenancy by W’s notice to quit: Hammersmith and Fulham London Borough Council v Monk [1992] 1 EGLR 65, Re Jones v Cusack-Smith [1931] 1 Ch 375; and Crawley Borough Council v Ure [1996] QB 13 considered.
* Editor’s note: Nor is anything mentioned in the Law Commission report Transfer of Land/Trusts of Land published 30 December 1988.
Paul Morgan QC and Ranjit Bhose (instructed by Prince Evans) appeared for the claimant; Jan Luba QC and Joanne Harris (instructed by Hecht & Co) appeared for the first defendant; the second defendant did not appear and was not represented.
Thomas Elliott, barrister
