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23/10/2011

Not a mother-in-law joke

Abdullah v Westminster City Council [2011] EWCA Civ 1171

Do matrimonial home rights apply where notice to leave to a non-tenant spouse  has been given by a joint tenant who is not the spouse? A question raised and answered in this homeless case. This was a second appeal to the Court of Appeal on a homeless review decision under Housing Act 1996 Part VII

Mrs A lived with her husband, her 18 year old son and her husband’s mother in a two bedroom Westminster tenancy. The tenancy was a joint tenancy for her husband and his mother dating from 2002. Mr A had fled Iraq some years ago leaving Mrs A and her son, who had arrived in the UK in 2009. Mrs A and her son slept in the living room and there were marital problems. Mrs A also suffered from PTSD after torture and from depression.

In June 2009, Mrs A approached Westminster, telling them that her mother in law had told her to leave the house. In June 2010, she applied as homeless, saying that her mother and husband had told her to leave. Westminster found her not homeless. On review that decision was upheld, in part because Mrs A had previously approached them saying she had been asked to leave but had remained in occupation, and largely on the basis of Section 30 Family Law Act 1996 – that Mrs A had the right not to be evicted or excluded from a matrimonial home by her spouse without leave of the Court.

On the section 204 appeal, Mrs A had argued that her mother in law had told her to leave and that she had no right to remain. The mother in law was not prevented from excluding her under s.30. There had been no licence impliedly granted by the mother in law to Mrs A when she moved in, but even if there were, it could be revoked by the mother in law without the consent or participation of the husband. The property was not a matrimonial home, but even if it were, she had no matrimonial home rights against the mother in law.

The appealed was dismissed. Mrs A appealed to the Court of Appeal.

Mrs A argued that the Recorder in the first appeal erred on three points of law:

First the Recorder made findings of fact which were not considered in the review decision. The review failed to find whether the house was the matrimonial home, who had granted the licence to occupy to Mrs A and whether one joint tenant was legally entitled to end a licence without reference to the other joint tenant. These omissions amounted to a failure to investigate and to consider the basis of Mrs A’s occupation. The Recorder had made findings of fact in the place of these omissions which overstepped the boundary of a ‘benevolent’ approach (Holmes-Moorhouse v Richmond) to interpretation of a review decision into the Authority’s duty of fact finding.

The Recorder had also erred in holding that one joint tenant could not end a licence unilaterally. The Recorder had held that simply because it was the mother in law who had ended the licence, this did not preclude s.30 matrimonial home rights for Mrs A. However, s.30 only applied to a property that was or was intended to be the matrimonial home, which was not the case here. Further the simple position was that any joint tenant could carve out a licence from the tenancy and any joint tenant alone could end that licence. Each joint tenant was entitled to the benefits of the whole of the tenancy.

Thirdly, the Recorder had failed to consider whether the Council had determined whether it was reasonable for Mrs A to continue to occupy the property. It had to be reasonable for her to occupy on a relatively long term basis. Ali v Birmingham CC.

The Court of Appeal gave these arguments short shrift. The opening of the judgment notes that Mrs A would have been arguing exactly the opposite had she been defending possession proceedings, and that rather sets the tone of the decision.

In Mummery LJ’s sole judgment, the Court found that the appellant’s arguments had focused almost entirely on the alleged legal errors in the Recorder’s decision. However, the crucial decision was that of the first instance review, and “Unfortunately and, in my view, unfairly to the Recorder, the legal submissions for the appeal have been floated free of the specific factors on which the review officer based her decision”.

The review officer had considered Mrs A’s first approach in June 2009 and the length of time that Mrs A had remained in the property before her second approach a year later. The review officer decided that this suggested that the accommodation was still available despite Mrs A being again told to leave.

Mrs A’s solicitor had admitted that she had matrimonial home rights over her husband’s ‘part of the tenancy’ but not that of the mother in law.

The review officer had concluded that the evidence was insufficient to find that Mrs A and her husband had separated and, on the medical information provided, Mrs A’s conditions could be managed with the treatment she was receiving.

The review officer had made reference to s.30 and concluded that she could find nothing to preclude the application of s.30 just because the mother also had an interest in the house. S.30 was meant to apply when one spouse had a beneficial interest in a property and the other did not, which was the case here.

The review officer noted that on previous occasions, Mrs A had asked to leave the house because it was overcrowded. The reviewer found that it was not so severely overcrowded as to make it unreasonable for her to continue to occupy.

The Court of Appeal was unable to find any error of law in the review officer’s decision and concurred with the Recorder. It was not necessary for the review officer to embark on a lengthy legal analysis of the power of the mother, as one joint tenant, to terminate a licence. It was self evident that the husband was a joint tenant. It was self evident that the property was a matrimonial home for the purposes of S.30. It would be “contrary to the objective of the statute and downright absurd” if s.30 could be defeated simply because the husband was a joint tenant with another.

There was still no sign of the mother enforcing her request that Mrs A leave, which went to reasonable to continue to occupy. The review officer had considered the circumstances, including overcrowding, marital breakdown and Mrs A’s medical issues in determining whether it was reasonable to continue to occupy.

The Recorder had not strayed into making findings of disputed fact. The primary facts were not in issue and the Recorder was entitled to consider those facts in relation to s.30 and the Housing Act.

There was no point of law arising from the review decision. Appeal dismissed.

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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