Housing solicitors at Swain & Co have been busily considering a decision of the Court of Appeal handed down on 24th January 2013. The court held that one joint tenant giving notice to quit will end the tenancy for all the tenants.
The case of Sims v Dacorum Borough Council  EWCA Civ 12 concerned a challenge to an old rule of Common Law, and whether it is was compatible with certain elements of the European Convention on Human Rights.
Mr Sims and his wife had been joint secure tenants on the property owned by local authority since 2002. They separated in 2010, with Mrs Sims alleging that Mr Sims had been violent towards her.
After she left the property, she served a Notice to Quit on the Council. Mr Sims asked the Council to allow him to become sole tenant of the property, but they refused, and after a series of internal reviews they issued possession proceedings on 28th October 2010.
In his defence, Mr Sims claimed that, amongst other things, the law as it stands would mean that eviction from the property would breach the rights under Article 8 of the European Convention and Article 1 of the First Protocol of European Convention. The County Court disagreed and made a Possession Order against him.
The case has worked its way up to the Court of Appeal. However it was an unusual case as both sides accepted that the Court could not allow Mr Sims’ appeal, as the law was clear. They were simply arguing whether the case should go to the Supreme Court – the highest Court in the United Kingdom – to decide whether the law should be changed.
In 1992, a case called Hammersmith and Fulham London Borough Council v Monk decided that where one joint tenant serves notice to quit, the tenancy ends for all joint tenants. Since then, a lot of cases in Europe and in English Courts – most significantly a case called Manchester City Council v Pinnock in 2010 – have suggested that where a person is threatened with losing their home, they must have the right to have the proportionality of the eviction considered by the Court under Article 8 of the European Convention on Human Rights (right to respect for a home) and Article 1 First Protocol (the right to respect the property).
Mr Sims’ lawyers argued that the law as it stands deprived him of the right to challenge his eviction, and suggested that the law should be changed so that giving a Notice would only terminate his wife’s tenancy, but allow him to continue as a sole tenant.
In a surprisingly short and quite strongly worded judgment, the Court of Appeal found that:-
- This appeal was only a challenge to the law itself, not to the way in which it applied to the facts of this particular case;
- The defence was not intended to secure respect for Mr Sims’ home, but to enhance rights which had already been granted to him in his tenancy agreement, so that it would effectively be using Human Rights Law to give him more rights than he had agreed under contract;
- The rule in Monk laid down a substantive rule of property in contract law which allowed one tenant to unilaterally terminate a joint tenancy. This right could be exercised by either tenant and was exercised by Mrs Sims. There was nothing in the law itself that amounted to an interference with his right to a home, so that Article 8 was not engaged;
- Article 1 of the First Protocol was not engaged, since the law represented an inherent right in a joint tenancy, and the Notice given by Mrs Sims was simply exercising her contractual rights to terminate the tenancy.
The Court of Appeal held that the challenge was unarguable and said referring the case to the Supreme Court would be a waste of court time and public funds.
James Hurford, a housing solicitor at Swain & Co expressed some doubts about this decision.
“While I can understand the Court of Appeal’s position, I have some doubts about whether it is correct. In essence, what they appear to be saying is that the legal rule in question does not engage either the right to respect for a home or the right to respect for property. The basis of this seems to be that the rule in Monk is an established rule in contract law, which was expressly reflected in the tenancy agreement. Ending the tenancy was thus simply a case of Mrs Sims exercising her contractual rights. I wonder whether the issue would be different if the contract did not specifically contain those obligations – as many private tenancies may not – and whether the Court of Appeal would have changed its view in those circumstances. The Court also appears to have considered that the fact that the Council had carefully and appropriately followed its own procedures before deciding to evict was enough to ensure his rights were inspected. I suspect that Mr Sims’ lawyers will appeal to the Supreme Court. In the meantime, however, it means that the old rule will stay in place, so that one joint tenant giving Notice to Quit will end the tenancy for all of the tenants. While the law may not be satisfactory, at least everyone knows where it stands”.
Anyone who finds themselves in this situation should seek legal advice as a matter of urgency.
Call Swain & Co for free on 0800 0351 999