Monkey on my back*

Even since McCann v. UK (2008) 47 EHRR 40, a lot of people (around these parts) have been waiting for a case on Article 8 and the rule in Hammersmith v Monk (Hammersmith and Fulham LBC v. Monk [1992] AC 478) to reach the higher Courts. Is the rule that notice by one joint tenant determines the tenancy for both/all compatible with Article 8 (or Protocol 1 Article 1)? Now one case has got to a higher stage. In a somewhat eccentric fashion, the Court of Appeal has given a distinctly forthright view, even if what the Court could actually do with the appeal was, more or less, nothing at all.

 Sims v Dacorum Borough Council [2013] EWCA Civ 12

This was an appeal by Mr Sims from a first instance possession order. Mr & Mrs Sims were the joint secure tenants of Dacorum BC, in a 3 bed house. The relationship broke up in March 2010 and Mrs Sims and the two youngest children moved a refuge. She told the Council she wanted to give up the tenancy. The Council suggested she serve a notice to quit. On 25 June 2010, she gave a month’s notice. The Council had not previous informed Mr Sims of any of this. The Council then refused Mr Sims request to transfer the tenancy into his sole name, a decision upheld in internal reviews in December 2010 and June 2011. Possession proceedings had been issued against Mr Sims in October 2010. It should be noted that the tenancy agreement provided

“100. Where either joint tenant wishes to terminate their interest in a tenancy they must terminate the full tenancy as in (92) above.
101. We will then decide whether any of the other joint tenants can remain in the property or be offered more suitable accommodation.”

The defence in the County Court pleaded:

that Monk was incompatible with the Article 8 rights of Mr Sims and that the court should construe the common law to make it compatible. The plea failed and a possession order was made. Mr Sims appealed on a number of grounds. The only ground now pursued is that the deputy district judge was wrong in law to decide that the service of the notice to quit by one joint tenant was effective to terminate the joint secure tenancy when that state of the law breached the rights of Mr Sims under Article 8 and Article 1 of the First Protocol of the ECHR. The latter ground was added by amendment.

The application for permission to appeal went ahead on one ground only

“The judge was wrong in law in deciding that the service of a notice to quit by one joint tenant was effective to terminate a joint secure tenancy. This breaches the appellant’s rights under Article 8 and/or article 1 of the First Protocol of the European Convention on Human Rights.”

The peculiarity of the application for permission was that both parties agreed that the appeal must be dismissed. The Court of Appeal was bound by the House of Lords decision in Hammersmith v Monk. Further, the common law ‘adjustments’ argued by Mr Sims also conflicted with binding authority in Burton v Camden LBC [2000] 2 AC 399 and Notting Hill HT v Brackley [2001] EWCA Civ 601, [2002] HLR 10, following Crawley BC v Ure [1996] QB 13

The issue, therefore, was whether permission to appeal to the Supreme Court should be granted.

The argument from Andrew Arden QC for Mr Sims was summarily summed up by Lord Justice Mummery as follows:

he submits that the effect of Monk is not reconcilable with the trend of authority from the Strasbourg Court on Article 8 and Article 1 of the First Protocol. The common law, “which belongs to the judges”, should evolve as “a living and developing entity” to achieve the result that is most compliant with the ECHR, so that there is no interference or deprivation, by treating the notice to quit as the release of one joint tenant’s interest to the other. Although that course is not open to the Court of Appeal, it was a good ground for granting permission to appeal to the Supreme Court.

There is no dispute that, as the claim for possession is by a public authority, the case falls within the scope of the 1998 Act. Mr Arden’s key point on the merits is that the effect of Monk is to destroy the legal rights of Mr Sims in the secure tenancy of his home without giving him any opportunity to participate in, or to influence the outcome of, the relevant legal process of service of the notice and its termination of the joint tenancy. The effect of the termination by Mrs Sims was to deprive her husband of his statutory protection in relation to the property.

Mr Arden QC developed his propositions by extensive citation from a long line of English and Strasbourg authorities. One could fill many, many pages with legal citations without adding anything of substance to the basic proposition that the private law rules on joint tenancies have to be re-fashioned by the Supreme Court in order to meet the requirements of the ECHR. The cases show, for example, that a “home” can exist without legal rights of occupation, so that a property can still be a “home” within Article 8 after the termination of a tenancy. Cosic v Croatia (2011) 52 EHRR 1098 at [21] states the general proposition that “no legal provision of domestic law should be interpreted and applied in a manner incompatible with [the UK's] obligations under the Convention.” Mr Arden argued that the termination of a right of occupation may engage Article 8 as being an interference with respect for the home. The Supreme Court has recognised the possibility that a court should be prepared to entertain an Article 8 challenge to the validity of the notice to quit, as well as to a claim for a possession order: Hounslow LBC v Powell [2011] 2 AC 186 at [120] and [122]. However, no case was cited by Mr Arden for converting a joint tenancy of residential property into a sole tenancy of property contrary to the wishes of the owner of the property.

The termination of the joint tenancy was also, Mr Arden submitted, an interference with the peaceable enjoyment of a possession within Article 1 of the First Protocol. The interference must be proportionate. A notice to quit given by one joint tenant to the landlord was incompatible with Article 1 of the First Protocol as interfering with the peaceable enjoyment of possessions: the other joint tenant, in this case Mr Sims, is disturbed in occupation and is threatened with eviction.

The Council’s arguments were summed up as:

First, the position of the Council in relation to Article 8. The article is not engaged by the rule in Monk. The aim of that Article is to protect the citizen from unjustified interference with respect for his home per se. The Council has done nothing to interfere with the respect for a home to which Mr Sims is entitled. The notice to quit in this case, which terminated the tenancy, was not given by it, but to it by Mrs Sims. It is not said that the possession proceedings taken by the Council are in themselves an unjustified interference with respect for the article 8 rights: McCann v. UK (2008) 47 EHRR 40 at [47]-[48]. The rights of Mr Sims in relation to those proceedings are adequately safeguarded by the court’s assessment of the proportionality of possession orders and eviction.

Secondly, the nature of the common law rule on unilateral termination of a joint tenancy. It is not in itself an interference with the rights of Mr Sims within the meaning of Article 8 and is not incompatible with it. A bargain was made when the joint tenancy was entered into between the Council and the tenants and between the tenants themselves. That bargain created legally binding rights and obligations, which were explained to Mr Sims at the commencement of the tenancy. It is not open to Mr Sims to argue that the common law rule on joint tenancies has interfered with his right to respect for his home.

Thirdly, Article 1 of the First Protocol. The Council says that the article is not engaged and that there has been no interference with those rights. The termination of the joint tenancy by Mrs Sims was allowed by the nature of the bargain that the parties have made on the letting of the property.

Fourthly, margin of appreciation. The common law rule falls squarely within the broad margin of appreciation afforded to Member States. It strikes a fair balance between the rights of the landlord and the tenant respectively. The Council entered into the tenancy agreement on the basis that more than one person would be liable under the tenant’s covenants contained in it and that each of them could at any stage determine his liabilities as tenant under the agreement. Possible policy objections to a situation in which not all the joint tenants under a secure tenancy occupy the property as their only or principal home should be taken into account.

To sum up, the points taken on behalf of Mr Sims are not arguable points of law of general public importance which would justify consideration by the Supreme Court. If the law needs to be reviewed with a view to possible amendment, that is not a matter for the Supreme Court, whose proper constitutional function is to declare and apply the law. It is not so supreme that it can legislate for changes in the law. That is the function of Parliament which has procedures for more widespread consultation, debate and scrutiny than a court hearing a single case argued only by the parties to it in their own respective interests.

It would be fair to say that the Court of Appeal, in Lord Justice Mummery’s sole judgment, was not at all impressed with Mr Sims’ arguments.

My conclusions need only take five short paragraphs. To some extent they overlap by reverting to the same inescapable basic points.

First, the compatibility issue. In this appeal from a possession order obtained by the Council, the ECHR challenge is solely about the compatibility of the rule in Monk with Article 8 and Article 1 of the First Protocol. It is not about the engagement of those articles by the Council’s possession proceedings against Mr Sims nor is it about whether such proceedings are justifiable by the Council.

Secondly, the objective of enhancement. It is not the object of this appeal to secure respect for the home lived in by Mr Sims as a joint tenant or even to protect from interference or deprivation the property and contract rights that Mr Sims had acquired (with his wife) from the Council as joint tenants. The sole aim is to enhance property rights conferred by contract by securing for him a sole tenancy of the Council’s property without the concurrence of the Council as owner of the property. If Mr Arden is right, Mr Sims would acquire, by force of ECHR law and in the absence of any agreement with the owner of the property, greater and different property and contract rights binding on the Council than he and his wife had originally acquired from the Council by agreement. Stating the matter quite baldly, he is aiming, by use of 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. That seems to me to be more a case of interference with the Council’s enjoyment of its possessions than of an interference by the Council with the possessions of Mr Sims.

Thirdly, Article 8 is not engaged. 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: its defeasibility by an act of one of them was inherent in the legal nature of the joint tenancy granted to them by the Council. Mrs Sims exercised her right. 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.

Fourthly, Article 1 of the First Protocol is not engaged. As (a) the rule in Monk is a proprietary and contractual legal right inherent in the joint tenancy of the property granted by the Council to Mr Sims and Mrs 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 her or by the Council with the enjoyment of the possessions of Mr Sims. His relevant possession was an interest in a joint tenancy that was, in its very nature, terminable unilaterally by Mrs Sims or by him. The Council’s role regarding the rule in Monk was simply as recipient of the notice given to it by Mrs Sims terminating the joint tenancy. The Council itself did nothing in relation to the termination of the joint tenancy that could possibly be described as an interference by it with the peaceable enjoyment by Mr Sims of the property.

Finally, the proposed appeal to the Supreme Court. It is unarguable. There is no incompatibility between the rules of English property and contract law relating to the termination of a joint tenancy by one joint tenant and the ECHR. I cannot think of a sensible purpose that would be served by the expenditure of yet more public funds (on both sides) on a repeat of this debate before five (or even more) Justices of the Supreme Court of the United Kingdom.

The appeal was refused permission and permission to appeal to the Supreme Court was refused as being “a waste of the publicly funded resources of the Supreme Court”.

Comment

Some initial hasty thoughts.

This is a brusque dismissal of the Art 8 (and Protocol 1 Art 1) arguments. While it is certainly the case that the position on termination of joint tenancies was both a common law and contractual position, that does not adequately deal with the ‘home’ under Art 8 case law, (Pinnock, Powell v Hounslow etc.. Though to be clear, the framing of this appeal was a full on challenge to Monk, not a proportionality case, or at least not as it went in front of the Court of Appeal)

Because this case was not on all fours with McCann v UK, in which the Council had effectively sought and procured a notice to quit from the departed joint tenant, the Court feels able to assert that there was no interference by the Council with Mr Sims’ Art 8 rights in the termination of the tenancy by Mrs Sims. Yet it is not in the contractual termination of the tenancy by Mrs Sims that the interference with Art 8 arguably arises, but in the Council seeking mandatory possession on that basis.

I would admit to being less convinced by the Prot 1 Art 1 argument on behalf of Mr Sims. To the extent that the secure tenancy was a creature of statute and contract, it is hard to see how termination according to the contractual provisions could amount to a P1A1 breach.

It may also be a stretch to say that compatibility would require a reading that would mean conversion of a joint to sole tenancy. As Mummery LJ, voicing the Council’s argument, puts it, it is not the Supreme Court’s role to amend the law. However, to see this as conclusive of the argument is again to elide the distinction between a contractual position, and that of ‘the home’ under Art 8. The common law rule in Monk and indeed the Council’s and court’s role in eviction would be susceptible to the Supreme Court’s power to change common law to be compatible with the convention.

I strongly suspect that this one doesn’t end here. We shall see if the Supreme Court beckons…

  • “Monkey on my back: This term emerged in the late 1800s to describe someone who was bothered and in a bad mood by something that wouldn’t go away” (Allegedly, possibly apocryphally)
Posted in FLW case note, Housing law - All, Possession, secure-tenancy and tagged .

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 +

7 Comments

  1. Harsh though it may be, you still have to go back to the original issue – if you, as a joint tenant (and a grown up), sign up to a joint tenancy, you know what you’re signing up to. You know that you, or the other joint tenant, can end the tenancy for both. As Mummery pointed at (at para 34) if Andrew Arden was right “Mr Sims would acquire, by force of ECHR law and in the absence of any agreement with the owner of the property, greater and different property and contract rights binding on the Council than he and his wife had originally acquired from the Council by agreement”. How could that be right?

    • But that argument (i.e. no art.8 issue in enforcing the terms of the agreement) is what the authority argued in Qazi and it was rejected there. Mummery might be right, but that ship sailed 15 years ago.

  2. Pingback: Monkey on my back – NearlyLegal | Current Awareness

  3. An interesting decision but there are still issues to be had on joint tenancies. If the facts are correct in that the partner and daughter’s moved out of the matromonial three beds home, then it is perhaps understandable that the council should apply it’s discretion and seek possession AND offer Mr sim an alternative suitable accommodation.

    This would be entirely proportionate as Mr Sim cannot expect to reside in an under-occupied property where he would be most suited to a one beds property. However, would the same arguments follow if he had occupied the accommodation with his two daughter’s, in that scenario he may well have a stronger claim for proportionality as he would have addressed the under-occupation point as well as a priority case assuming the daughter’s are dependent children.

  4. Aside from issues of proportionality and undue interference which on a common sence approach seems logical to house an under- occupier to a more suitable premises, though it may be harsh for since only one party has given notice, and therefore appears somewhat a subjective instrument in which to terminate a tenancy, particularly where we know that family breakdown is high with around 50% of marriages ending in divroce through no particular fault of the parties (irretrievable breakdown) in a short period.

    However, on the above point in mind an interesting case, if I recall the facts correctly, namely Freeman v Islington 2000 the courts were minded to construe the actions of the wife or partner to terminate the joint tenancy as vindictive and capricious thus negating the notice and restoring the partner a new sole tenancy.

    • Freeman v Islington 2000? Got a reference for that? The only one I know is [2009] EWCA Civ 536 and that was about succession, not Monk/joint tenancies. I would also be very surprised if negating the notice gave rise to a new sole tenancy!

  5. This has been listed for permission to appeal, with the full appeal to follow in the event permission is granted, to the Supreme Court on 28/29 April 2014. It is being heard with CN v Lewisham.

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