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The Monk habit


Lana Wilson v London Borough of Harrow [2010] EWHC 1574 (QB)

This was the combined permission/appeal hearing in the High Court from a first instance hearing by a CJ of a defence to a possession claim based on an NTQ served by a joint tenant. The principal ground of appeal was a further argument that the rule in LB of Hammersmith and Fulham v Monk [1992] 1 AC 478 was in breach of Article 8 of the European Convention of Human Rights.

We have been here before, a couple of times. R(Husband) v Solihull; Dixon v Wandsworth. (Links to our reports). The issue is whether the rule that a notice to quit given by a joint tenant determines the tenancy for the remaining tenant stands, where the landlord is a public authority, or is at least arguably in breach of Art 8.2 so incompatible. If so, can it be remedied by a change to the common law on notices to quit by a joint tenant.

Both Husband and Dixon had found that, given Harrow LBC v Qazi [2004] 1 AC, unless the House of Lords/Supreme Court took a different view, the rule in Monk was not arguably incompatible with Article 8.

The brief facts in this case where that the appellant, Ms W, had been given a secure tenancy of the property in 1992. In 1994 it was turned to joint tenancy with Ms W’s husband. By 2005, Ms W had begun to suffer mental health problems. Rent arrears began to accrue, because Ms W would not deal with making a housing benefit application. Mr W left with their child. In 2006 to 2007, Mr W was in discussions with the local authority about the tenancy. He was apparently advised that, if he wished to end his responsibility for the tenancy and the accruing arrears, he could serve a notice to quit in the course of extensive discussions between him and Harrow’s housing officer, in the course of which Ms W’s increasing mental health difficulties were made clear to Harrow. Eventually, after Harrow had sent an NSP on rent arrears of £1175.63 in February 2007 and several further letters, Mr W did sign an NTQ sent to him by Harrow and sent it dated 30 March 2007, ending the tenancy from 30 April 2007. Despite extensive attempts by Ms W’s friends, she failed to complete an application for a new tenancy until September 2007, when it was rejected. In March 2008, Harrow began possession proceedings. A litigation friend – the official solicitor was appointed.

At first instance, Ms W’s defence, that the rule in Monk that a notice to quit by one joint tenant determined the tenancy of all joint tenants was in breach of article 8, and so the Notice to Quit was not valid as a way of ending the tenancy, was dismissed.

In relation to the Article 8 argument, the judge concluded that the Council had taken account of the relevant considerations and that it was not unreasonable to seek possession. It was fundamental to the Council’s decision, he concluded, that the Applicant was “over housed in a two bedroom flat and that her housing needs can be met in a one bed flat.

A possession order was granted and a judgment for arrears of about £3,200.

Ms W appealed on grounds that:

1. The rule in Monk is incompatible with Article 8
2. The common law should be developed so as to treat notice to quit by one joint tenant as an act similar to a release or assignment of interest to the remaining joint tenant.
3. The Council, as a public authority, must deal with people who turn to it for advice fairly, not only to them but others directly affected. In advising Mr W to serve notice to quit rather than assign or transfer his interest in the property to Mr W, the Council were in breach of this duty. (This hadn’t been argued in this form below).

On 1. After a tour of Dixon, Husband and, most importantly, Harrow LBC v Qazi [2004] 1 AC 983, the Court held that although the rule in Monk predated the incorporation of the ECHR into English law, Qazi was to be taken as binding on the proposition that the rule in Monk was not incompatible. Until Qazi was said not to be good law any argument as to incompatibility was bound to fail. Their Lordships had not considered it needed revisiting in the light of McCann v UK.

On 2. The respondent no longer accepted that Mr W’s interest could have been assigned. Because of the judgment on 1, it was not necessary to decide this point, nor whether such a development in the common law was necessary to render Monk compatible with Art 8. However, such a development would render some very familiar concepts altogether new, in what would be a far from incremental step. It would probably require Parliament to intervene.

Harrow contended that to construe a notice to quit by one joint tenant in such a manner would conflict with the requirements of the Housing Act 1985 on assignment. It was common ground that the relevant exception to the general prohibition on assignment was HA 1985 s.91(3)(c):

an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment.

Harrow argued that (c) contemplated the transfer of a tenancy to a non-tenant, not assignment of interest from one joint tenant to another:

As I understood his [Counsel for Harrow] argument, it was as follows. The policy of the 1980 Act (consolidated in the 1985 Act) was to permit transmission of a secure tenancy by way of succession once: see Birmingham City Council v Walker [2007] 2 AC 262. The test of whether an assignment may be valid is whether the purported assignee would have been “qualified to succeed” the tenant on the tenant’s death. Since, he argues, the tenancy would vest in the surviving tenant by operation of the principle of survivorship (which the Housing Act 1985 leaves intact), it would only be then that that sole tenant would be deemed to be a “successor” (within s.88(1)(b)), but only for the purposes of preventing a succession to the tenancy in the future.

Which, as far as I can see means that Harrow were arguing that a sole tenant by means of survivorship is a successor but only to the extent that it prevents another succession, but the joint to sole tenancy wasn’t a succession (apart from for these purposes of a further succession, when it was). Is it just me, or this that a bit of a stretch? We’ll not find out now, because the Court held that these were complex issues of statutory construction that it was not now necessary to resolve and would be better considered in a case in which they arose directly. But the Court was unable to conclude that an NTQ could be interpreted as an assignment or transfer of interest to the remaining tenant.

On 3. This specific argument had not been made to the court below. It effectively raised the issue of oppression:

The body of law upon which the argument is founded includes those cases raising the issue of “oppression”: see, for example, Southwark L.B.C. v Sarfo (2000) 32 HLR 602 (where Roch LJ said, at 609, that “oppression may be very difficult if not impossible to define, but it is not difficult to recognise”); London Borough of Hammersmith & Fulham v. Hill (1995) 27 HLR 368; Lambeth London Borough Council v Hughes (2001) 33 HLR 33. It includes also those situations where, in general terms, a housing authority must act “fairly and reasonably” in administering its responsibilities: see, for example, Sheffield City Council v Smart (2002) HLR 34.

While an abuse of power could not invalidate Mr W’s notice to quit, Ms W argued that it would make it an abuse not to grant the sole tenancy to Ms W subsequently.

Harrow argued that this issue was raised far too late, with plenty of opportunity to raise it below.

While the judge below had not been asked to consider this issue as now presented, a judge in a busy County Court will be alert to something amiss in a case like this. IN fact the Judge referred approvingly to the housing officer’s handling of her dealings with Mr W and Ms W and considered she had made considerable efforts to assist.

This Court could also not identify anything amiss in the housing officer’s handling of the case:

In the first place, there would have to be a compelling argument that assignment was not merely an option, but an option that would have led to the Applicant being immune from a claim for possession. Whilst I have not found it necessary to form a concluded view on this issue, I have noted that the issue is not entirely straightforward. If I am correct in that analysis, I find it difficult to see why a housing officer should raise such an issue directly with someone such as Mr Wilson or his wife: it could set a hare running which would be best left sedentary. The best that could be done, as was done here, was to advise the obtaining of independent legal advice

Permission to amend grounds of appeal to include this issue refused.

Ms W’s position was a difficult one and in view of her mental health issues, this decision was one that, if the law permitted, would have been found the other way. However, the possession order would mean that Ms W would have to move, which although it would be a considerable hardship to her, would not mean that she was homeless.
Permission to appeal given, but appeal dismissed.

It is now clear that any challenge to Monk on Art 8 grounds is going to have to go to the Court of Appeal and probably the Supreme Court. While Mr Justice Foskett here acknowledges that Husband and Dixon were both High Court judgments and, like his own, not technically binding on other High Court judges, he adds:

I am of the view that the rule in Monk is compatible with Article 8, it seems to me that, whilst neither my decision nor the other two to which I have referred is technically binding on other judges of first instance, the likelihood is that it will require a converse decision of a higher court before an argument to the contrary can be advanced with any realistic prospect of success.

So, any news on whether there is an appeal brewing? I am given reason to believe that there is at least one more challenge to Monk awaiting a High Court hearing (and presumably dismissal and appeal…)

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.


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