Joint tenancy — Notice to quit served by one tenant bringing tenancy to an end — Whether council acting unlawfully in procuring notice to quit — Whether unlawful to seek possession and refuse alternative accommodation to other joint tenant — Claim dismissed
The claimant and his wife held a joint tenancy of a property that was let by the defendant council. The marriage broke down and the wife obtained a non-molestation injunction and an ouster order against the claimant on the ground of domestic violence. She applied for the rehousing of herself and the couple’s children on the same ground, and, when she had been rehoused, she served a valid notice to quit bringing the joint tenancy to an end. The council then brought possession proceedings against the claimant, and, in accordance with their housing policy, declined to offer him alternative accommodation. In the possession proceedings, it was determined that Article 8 of the European Convention on Human Rights was not available as a defence to a possession claim: Bradney v Birmingham City Council; Birmingham City Council v McCann [2003] EWCA Civ 1783; [2003] PLSCS 283.
The claimant brought a claim for judicial review challenging the council’s actions. He contended that: (i) the council were not entitled under the law or their policy to seek to waive his right to possession of the property by seeking a notice to quit from his wife rather than taking possession proceedings under Part 5 of the Housing Act 1985; (ii) had the council been so entitled, their decision to do so was flawed because it had been taken without considering all the material facts, including the claimant’s Article 8 rights, and without ensuring that the wife had proceeded upon an informed basis and in full awareness of the consequences of what she was doing; and (iii) the decision to issue possession proceedings against the claimant, and not to offer him alternative accommodation, was unlawful.
Held: The claim was dismissed.
It was clear from the earlier Court of Appeal decision that the council had acted lawfully and within their powers in obtaining the notice to quit that had had the effect of terminating the joint tenancy. The earlier judgment did not omit any public law arguments or issues as to the way in which the council had behaved. It was clear authority for the proposition that a tenant’s failure to appreciate the effect of a notice to quit did not give rise to a right to challenge that notice. The wife had clearly sought to divest herself of all responsibility for the property from the time at which she returned the keys, and both she and the council had proceeded upon that basis; in obtaining the notice to quit, the council were doing no more than seeking to formalise the situation in line with their housing policy: Harrow London Borough Council v Qazi [2003] UKHL 43; [2003] 3 EGLR 109 also considered. Nor could the council’s decision to seek possession and to refuse alternative accommodation for the claimant be challenged. The decision to apply the housing policy, in circumstances where domestic violence had been established by the existence of the injunction and ouster order, could not be said to have been unlawful or outside the range of decisions that were properly open to the council.
Stephen Cottle (instructed by Eric Bowes & Co, of Solihull) appeared for the claimant; Ashley Underwood QC and Catherine Rowlands (instructed by the solicitor to Birmingham City Council) appeared for the defendants.
Sally Dobson, barrister
