Does it breach human rights to allow one tenant to unilaterally terminate their joint tenancy agreement?
18th November, 2014
The 1992 case of LB Hammersmith and Fulham v Monk held that one joint tenant could terminate a joint tenancy by Notice to Quit.
This case was, of course, prior to the Human Rights Act 1998 coming into force, which gives everyone the right to respect for their home and to live without unjustified interference from a public body.
In a recent case, the Supreme Court has had to re-consider whether the ruling in LB Hammersmith and Fulham v Monk is compatible with the European Convention of Human Rights and the Human Rights Act 1998.
Sims v Dacorum Borough Council
Mr Sims and his wife occupied a three bedroom property by way of a joint secure weekly tenancy with Dacorum Borough Council.
After eight years, Mrs Sims left the property, taking two of their four children with her. Mrs Sims sought a new tenancy with Wycombe District Council, but was unable to enter a new tenancy agreement whilst still a tenant of Dacorum’s.
As such, she served Notice to Quit on Dacorum and terminated the tenancy held jointly with her husband.
Mr Sims requested that the tenancy be transferred into his sole name, however, this was refused and Dacorum issued possession proceedings. Mr Sims defended these proceedings on the basis that allowing one joint tenant to unilaterally terminate a joint tenancy was incompatible with his Article 8 rights.
Mr Sims’ defence failed and possession was ordered on 16 December 2011. He appealed first to the Court of Appeal and second to the Supreme Court.
What did the Supreme Court say?
The Supreme Court unanimously dismissed the appeal for the following reasons:
1. Mr and Mrs Sims’ tenancy agreement specifically stated that the tenancy would be lost if one tenant served Notice, and it would then be for the Council to decide whether or not to allow the remaining tenant to stay at the property;
2. Mr Sims was able to raise the defence of proportionality. However, no criticism could be made of the decision making process and it was found to be both lawful and proportionate for a possession order to be made.
It was further relevant that Mr Sims had benefitted from the same right to terminate the tenancy should he have chosen to do so at any point throughout the tenancy.
It was also of serious concern to the Supreme Court that reversing the earlier ruling of LB Hammersmith and Fulham v Monk could lead to a situation where a person is forced to remain a tenant against their will.
What this means for you
This is positive news for all social housing providers. You can be confident when accepting Notice to Quit from one joint tenant that you are not infringing the human rights of the other when taking legal action to recover the property, assuming, of course, that any such legal action is proportionate.
We would always recommend that you carefully record the facts of the situation, and the reason for your decision, and provide for the review of that decision at an appropriate level to ensure you can demonstrate proportionality if you are challenged to do so.
If you want to discuss this or any other topics affecting you, please do not hesitate to get in touch.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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