Your Questions Answered: What is the legal position when only one of two joint tenants gives notice to quit?

Your Questions Answered: What is the legal position when only one of two joint tenants gives notice to quit?

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Author: Bukola Aremu

Legal position settled in House of Lords case, Hammersmith and Fulham London Borough Council v Monk 1992 AC478. Despite the repeated reliance on the HRA 1998 - Article 8 and Article 1 of the First Protocol by Defendants, Monk remains authority.

In the case of Hammersmith & Fulham v Monk, the Defendant had been one of two joint tenants. Without his knowledge, the other tenant gave notice to quit to the council to terminate the tenancy. The Defendant did not leave and the council sought possession. The Court held that in absence of any express terms in the tenancy stating otherwise, one joint tenant can unilaterally terminate a periodic joint tenancy by giving proper notice to quit. The Court doubted whether the tenant who gave notice to quit was in breach of trust towards the other tenant, but even if she was, that did not make the notice to quit a nullity. Accordingly, possession was granted.

Monk was revisited in the recent and similar case of Sims v Dacorum Borough Council [2013] EWCA Civ 12. Mr & Mrs Sims were granted a joint introductory tenancy of a three bedroom house on 15 March 2002. The tenancy agreement provided the following in regards to ending the tenancy:

  • Where either joint tenant wishes to terminate their interest in a tenancy they must terminate the full tenancy 
  • We will then decide whether any of the other joint tenants can remain in the property or be offered more suitable accommodation

Mr & Mrs Sims broke up, reportedly due to domestic violence by Mr Sims. Ms Sims left the property in March 2010 and moved into a woman's refuge. She served notice to quite after informing the Council that she wanted to give up her tenancy. The notice was due to expire on 26 July 2010. The Council refused Mr Sims request to remain in the property and issued possession proceedings.

Unlike in the case of Monk which pre dates the Human Rights Act 1998, the case of Sims v Dacorum Borough Council focused on the Human Rights Act 1998 particularly Article 8 and Article 1 of the First Protocol.

In the case of Sims the County Court made a possession order and Mr Sims appealed on the grounds that the District Judge was wrong in law to decide that the service of a notice to quit by one joint tenant was effective to terminate the joint secure tenancy as it breached his rights under Article 8 and or Article 1 of the First Protocol of the European Convention of Human Rights.

Mr Sims appealed on the ground that the rule in Monk should be developed so not to interfere with his right to respect for his home (Article 8) and or his right to freedom from state interference with his property rights (Article 1 of the First Protocol).

The Court made the following comments in its conclusion to dismiss the appeal:

  • Mr Sims aimed to use the ECHR to obtain a tenancy of a three bedroom family house for himself in place of the joint tenancy of a family home which the Council had originally granted
  • Article 8 is not engaged. The case of Monk laid down a substantive rule of property and contract law under which one joint tenant has the right to serve notice unilaterally terminating a periodic joint tenancy. Mrs Sims had that right, as did Mr Sims. There is nothing in the legal rule per se or in its exercise by Mrs Sims that was an interference by her or by the Council with respect for the home of Mr Sims
  • Article 1 of the First Protocol is not engaged. As (a) the rule in Monk is proprietary and contractual right inherent in the joint tenancy of the property granted by the Council to Mr Sims and (b) the notice given by Mrs Sims to the Council was in exercise of her rights as a joint tenant, there was no interference by here or he council with the enjoyment of the possessions of Mr Sims. His relevant possessions was an interest in a joint tenancy that was, in its very nature, terminable unilaterally by Mrs Sims or by him. The Council itself did nothing in relation to its termination of the joint tenancy that could be described as interference by it with the peaceable enjoyment by Mr Sims of the property

Conclusion

The case of Monk remains authority in determining a joint tenancy by service of notice to quit. The case of Sims reiterates this authority and should also provide comfort to landlords that ECHR art 8 is not available as a defence to possession proceedings to enforce its ordinary property rights. Furthermore Article 1 of the First Protocol has not been found to be engaged in this context.

NB: A landlord and tenant can agree to treat a notice to quit (served by a tenant on the landlord) as valid even if it does not comply with notice period by wavering the requirements of four weeks notice.

About the author

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Bukola Aremu

Senior Associate

03700 864158

Bukola has over 10 years experience in dealing with all aspects of housing management litigation issues for registered providers and local authorities. Her experience includes possession claims for breach of tenancy, disrepair matters, and anti-social behaviour, possession claims and injunction applications. Bukola is a member of the Chartered Institute of Housing.

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