Legal notes James Driscoll explores the human rights issues associated with ending joint tenancies
Key points
- A joint periodic tenancy can be terminated by one tenant giving notice to quit
- In the case of secure and assured tenancies such a notice allows the landlord to recover possession at common law
- This principle does not breach the Human Rights Act 1998
It is a sad fact of life that so many property cases become the subject of litigation because of a breakdown in a couple’s relationship. Where the couple rent their home, what is to become of the tenancy if their relationship comes to an end? Each of them might ask the landlord to transfer the title to them but few landlords will do this willingly. In the case of “social landlords” they may have to re-house one partner if there are dependent children and then hope to recover possession from the other (particularly if they do not have the day-to-day care of the children and are living in accommodation that is now in excess of their housing needs).
Ending a joint tenancy
As a result, the practice has developed of the social landlord re-housing one partner provided that partner gives notice to quit to the landlord. If this has the effect of terminating the tenancy, can the landlord then seek possession of the dwelling? Or, can the occupier assert any statutory rights as a tenant? In Hammersmith and Fulham LBC v Monk [1992] AC 478; [1992] 1 EGLR 65, the House of Lords decided that a periodic tenancy can be brought to an end by a tenant giving notice to quit unless the tenancy contains a contractual term to the contrary. This is the position even though the tenant who gave the notice did so against the wishes of the other tenant. It is also the position where the notice is given without the other tenant’s knowledge and even though it may have the effect of ending any security of tenure the remaining tenant enjoyed.
In practical terms this gives a social landlord the right to recover possession. If the tenancy was a secure tenancy, the landlord’s claim can be based simply on its common law right to recover possession. As the secure tenancy has been terminated by the notice to quit, no grounds for possession need to be made out under the Housing Act 1985. In the same way, a landlord can recover possession in such circumstances where a fully assured joint periodic tenancy has been ended because one of the co-tenants gave a notice to quit. None of the grounds for possession (under the Housing Act 1988) have to be established simply because the assured tenancy will have come to an end once the notice to quit expired.
However, Monk was given before the Human Rights Act 1998 was enacted. Should the decision be different now that the Act has to be considered?
The human rights issues
This forms the backdrop to the recent Supreme Court decision in Dacorum Borough Council (and another) v Sims [2014] UKSC 63; [2014] PLSCS 315. In a notably short decision, the President, Lord Neuberger, gave the unanimous opinion of the court.
Mr and Mrs Sims were joint secure tenants. Following the break-up of their relationship, Mrs Sims and their two younger children left their home, which was rented to them on a joint secure tenancy. She applied to the landlord for accommodation and the landlord agreed but required her to give notice to quit. Mr Sims (who had learning difficulties) remained living in the house (for a while with the two older children) but his request to remain there permanently was refused. Possession proceedings followed and Mr Sims’ defence included two human rights challenges: first, that his right to respect for his home (under Article 8 of the European Convention on Human Rights) and second, his right to enjoy his possessions (Article 1 of the First Protocol to the Convention) had both been breached.
Possession was ordered
Possession was ordered by a district judge in what the Supreme Court described as “an admirably clear and thorough judgment” ([10]). Mr Sims appealed to the Court of Appeal arguing that Monk was incompatible with his Article 8 rights (and that the common law should be changed), though curiously his counsel agreed at that hearing that his appeal should be dismissed. On appeal to the Supreme Court he was given permission to appeal to argue again that Monk was incorrect in light of the human rights legislation. However, in the event, he argued that the effect of Monk is that the possession order infringed his rights under Article 8 and the First Protocol.
Lord Neuberger dealt first with the protocol submission, which he rejected. The result in Mr Sims’ case, he concluded, was dictated by the tenancy agreement he had signed with the landlord (which included a term allowing either joint tenant the right to bring it to an end by notice to quit). Even though the practical effects may seem harsh, an opposite decision (one that could mean that Mrs Sims could not give up the tenancy, or that the landlord would now have to deal with two tenancies, not one) is also harsh. The landlord’s decision to recover possession in this case was reached by the landlord having fully considered all the relevant factors, including his length of residence, and that he had been afforded the opportunity of making representations (which he did) whilst the landlord was considering its options.
Mr Sims’ other human rights challenge fared no better. Lord Neuberger noted that a tenant, or a former tenant, may challenge the decision to evict on the basis that it is disproportionate, applying the principle developed in decisions such as Manchester City Council v Pinnock [2011] UKSC 45; [2010] 3 EGLR 113 and Hounslow LBC v Powell [2011] UKSC 8; [2011] PLSCS 59 and R (on the application of CN) v Lewisham LBC [2014] UKSC 62; [2014] PLSCS 178. Lord Neuberger saw no reason to interfere with the reasons given by the district judge, who ordered possession on the basis that it was lawful and proportionate given the way in which the landlord had carefully considered all relevant matters before reaching the decision to evict.
He also rejected the alternative submission that the serving of the notice to quit by Mrs Sims violated Mr Sims’ rights. Lord Neuberger concluded that adequate respect for these rights was given as his tenancy ended in accordance with an agreement he had signed, the court had to be satisfied that the landlord is entitled to evict as a matter of domestic law and no order could be made without according him the right to argue that it would be disproportionate to evict him.
Professor James Driscoll is a solicitor, writer and accredited mediator
