Shoosmiths property litigation team win 'right to occupy' case at Court of Appeal

Shoosmiths property litigation team win 'right to occupy' case at Court of Appeal

Published:

Shoosmiths helps Derwent Housing Association ('Derwent') to achieve success at Court of Appeal concerning a remaining spouse's right to occupy where the departing spouse has terminated the tenancy and vacated the home.

Shoosmiths has helped Derwent in further narrowing the scope for remaining spouses who are not formal tenants to argue they should have an indefinite ability to occupy once the sole tenant spouse has left the home.

Bukola Aremu represented Derwent in the matter which concerned Mr Taylor arguing he should have the right to remain in the matrimonial home after Mrs Taylor had terminated the tenancy in her sole name and vacated the property.

Mr Taylor sought to argue that Mrs Taylor had not validly terminated the tenancy and that he had rights to remain in the property under the Family Law Act 1996 (FLA), which rights must be respected by Derwent to avoid violation of Mr Taylor's rights under articles 1 and 8 of the European Convention on Human Rights.

With the assistance of Vaughan Jacob of Lamb Chambers, Bukola secured judgment from the Court of Appeal confirming that Mrs Taylor's notice was sufficient at common law to terminate the tenancy. The FLA applied only where the non-entitled remaining spouse is entitled to occupy, not was entitled. As Mrs Taylor had terminated the tenancy and vacated, there was neither her tenancy nor her occupation for Mr Taylor to base his rights on. Under the FLA, the right not to be evicted was enforceable against Mrs Taylor, not against Derwent as landlord. There is nothing in the FLA which restricted Mrs Taylor's power to terminate her own tenancy.

The decision provides valuable support for local authorities and housing associations needing to regulate the occupation of their properties where relationships between tenants break down, an absolute necessity given the current housing shortage.

Shoosmiths has in-depth knowledge and years of experience in dealing with residential tenancies and rights of occupation. To discuss a similar issue with our Property Litigation team, please contact: Bukola Aremu at [email protected]