Joint tenancy of house terminated by one
joint tenant — Respondent council obtaining possession order — Other joint
tenant claiming breach of right to family life — Whether Article 8 of
European Convention on Human Rights engaged — Whether property constituting
appellant’s home — Appeal allowed
The appellant and his wife, S, were secure joint tenants of a house owned by
the respondent council. It was an express term of the tenancy that either
joint tenant could terminate the tenancy by serving written notice on the
council. S moved out of the house, and, in February 1999,
served a notice terminating the tenancy in March 1999. The appellant
applied to the council for sole tenancy of the property. The
application was refused on the basis that the appellant, as a single person,
was not entitled to family-sized accommodation.
In possession proceedings brought by the council, the appellant pointed out that he had remarried in July 1999, and that his new wife, and her five-year-old son, had moved into the house with him in June 2000. He submitted that the council, in seeking a
possession order, had interfered with his family life, in breach of Article
8(2) of the European Convention on Human Rights, and that such interference
was not justified as the property was no longer under-occupied.
The recorder held that notice to quit by one joint tenant was sufficient in
law to determine the whole tenancy, and that the appellant had therefore had
no legal or equitable interest in the property since March 1999. He
considered that Article 8 was not engaged, since the tenancy had not been terminated by any act of the council, and that the property did not constitute the appellant’s home within the meaning of Article 8(1), because
he had no interest in the premises then or when the proceedings were commenced. He accordingly granted the possession order.
On appeal, the appellant contended that whether a property was a person’s
home was a question of fact, and that it was not necessary, in all cases, to
have a legal or equitable interest. The council submitted that a ruling in
favour of the appellant would be tantamount to finding that he had a right
to be provided with a home, a right that Article 8 did not confer.
Held: The appeal was allowed.
The concept of “home” was not limited to premises that were lawfully
occupied, although unlawfulness was a factor that might be relevant to the
balancing exercise between the interests of the community and those of the
individual. Whether a property was a person’s home would depend upon the
factual circumstances, the test being whether that person had shown
sufficient and continuing links with the place of habitation: Buckley
v United Kingdom [1997] 2 PLR 10 and O’Rourke v United
Kingdom Application No 39022/97 applied; S v United
Kingdom (1986) 47 DR 274 not followed. That test accorded with the
ordinary meaning of the word “home”. The property
under consideration had been the appellant’s home before the termination of
the tenancy and he had established that it had continued to be his home
notwithstanding the termination of the tenancy by the other joint tenant. It
was not a case where the appellant had had no home to begin with and sought
to be provided with one, and therefore no issue arose of any right to be provided
with a home: Chapman v United Kingdom (27238/95) (2001) 33 EHRR 18
distinguished.
Article 8 was engaged when the court granted a possession order. The appellant had had a right to a home at the time when the possession
proceedings were served upon him. The question of whether the interference
with that right was permitted by Article 8(2) would be remitted to the
county court.
Jan Luba QC (instructed by the Blackwell Partnership) appeared
for the appellant; David Matthias (instructed by the solicitor to Harrow
London Borough Council) appeared for the respondents.
Sally Dobson, barrister
