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Or spousal rights after notice to quit served by joint tenant.

Derwent Housing Association Limited v Taylor,  Court of Appeal (Civ Div) 19 January 2016 (unreported as far as I can see, apart from this note by Shoosmiths, for which we are suitably grateful).

Derwent HA were Mrs T’s landlord, on a sole assured tenancy. Mrs and Mr T lived in the property as the matrimonial home. She left in 2013 and in February 2014 served a notice to quit (allegedly defective), Derwent accepted as terminating the tenancy. Mr T remained and defended possession proceedings when issued by Derwent. At first instance, Mr T lost.

On appeal, Mr T argued:

  • Under s.30(4) Family Law Act 1996 his continued occupation was to be treated as occupation by Mrs Taylor as tenant;
  • The scheme under the Act gave effect to his rights under Article 1 (protection of property) and 8 (right to respect for privacy of family life and home) of the First Protocol of the European Convention on Human Rights (ECHR). Derwent was under a positive obligation to protect Mr Taylor’s enjoyment of these rights and an order for possession would violate them.

The Court of Appeal dismissed the appeal.

Mrs T’s notice was a sufficient in common law to end the tenancy.

S.30 Family Law Act only applied where there was a continuing entitlement to occupy, not when that entitlement had been ended. There was no occupation or tenancy of Mrs T for Mr T to base continuing s.30 rights on.

No ECHR violation.


No huge surprise here. Get those FLA 1996 injunctions in before any NTQ by the departed spouse…

Posted in assured-tenancy, Housing law - All, Possession.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +


  1. How do you get those FLA injunctions in promptly without legal aid and with a client that’s, for arguments sake, unable to pay.

  2. I’ve revisited this blog (thanks by the way) as a question over protection from eviction has come up following a tenant’s (valid) notice to quit in relation to an AST. I note s.3(1) PfEA 77 states that it’s unlawful to evict, otherwise than proceedings in the court…”where any premises have been let as a dwelling under a tenancy which is NEITHER A STATUTORILY PROTECTED TENANCY nor excluded tenancy.”

    So if assured tenancies (and ASTs) are excluded from protection under s.3 PfEA 77, why is it that as in this case, possession is sought in the courts when a tenant’s NTQ expires (and the tenancy has ended) and they remain in occupation? Can they not ‘simply’ be ‘peacefully evicted’?

    There doesn’t appear to be any statutory protection under the HA 1988 for tenants when their own valid NTQ has expired as far as I’m aware?

  3. Yes if it terminates the tenancy, i wonder if theres any cases of the housing association or private landlord not getting a court order and just changing the locks after the NTQ expired? Now you can’t serve s21s at the start of the tenancy i wonder whether you could get the tenant to sign a NTQ at the start as part of the agreement instead to protect the landlords interests.

    • No to all of that.

      A possession order in those circumstances is to protect the landlord. Any attempt to carry out an eviction involving forced entry to an occupied property is an offence under section 6 Criminal Law Act 1977. That would include forcing entry or drilling out locks.

      Any attempt to procure a tenant NTQ would very likely make the NTQ of no effect – and certainly if the landlord tried to require one to be signed. It might also amount to a s.27 HA 1988 breach, or derogation from grant, or breach of quiet enjoyment.

      I simply don’t get this obsession that some landlords seem to have with serving a s.21 at the start of the tenancy. Are they incapable of counting months?

  4. Ok, lets put procuring NTQ to one side then. But if valid NTQ has been given by the tenant and this has expired, then locks are changed when tenant is not there (no-one opposing entry re s.6 Crim Law Act) – what law/offence is the landlord protecting himself from?
    If the AST and so protection under HA1988 has ended and ASTs aren’t included in s.3 Protection from Eviction Act?

    • Hypothetically, yes. But unlawful eviction is not the only thing to be worried about. The landlord would then be subject to the Torts (Interference with Goods) Act 1977 in regard to all the tenant’s belongings still in the property, and potentially face a claim in trespass to goods. Using the gas or electricity if the supply was still in the tenant’s name would be theft, and so on and on.

      Hence the value of the protection of a court ordered eviction.

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