Monk silenced

Sims v Dacorum Borough Council [2014] UKSC 63

If there is a positive to take from this, it is that it is a Supreme Court judgment that won’t take long to discuss. The issue of the rule in Monk that notice by one joint tenant determines the whole tenancy came before the Court, on the issue of A1 P1 rights to property and Art 8 rights. We noted the Court of Appeal decision here.

The simple version of the facts is that Mr Sims was a joint tenant with his then wife in a Dacorum secure tenancy. She left and served notice ending the tenancy. Dacorum brought possession proceedings and a first instance possession order was made, after hearing Mr S defences.

It is, frankly, to see how the Appellant’s argument before the Supreme Court were put. They are dispatched with brevity, indeed vim, in the judgment. But on both A1 P1 and Art 8, the argument was that the common law rule in Monk meant that there was a breach of Mr S’s rights as he had no possible part or say in the determination of the tenancy.

On A1 P1, though, Mr S ran into the problem that his tenancy agreement stated

“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.”

So, property rights were subject to the contractual terms.

The only two arguments which I think Mr Sims could even conceivably raise in those circumstances would be (i) that clause 100 is irrational or at least so unreasonable as to offend the right to enjoy the property concerned, or (ii) that Dacorum unfairly or irrationally operated clause 101. Assuming (without deciding) that those arguments are open to him in principle in relation to his A1P1 claim, it is nonetheless plain that they fail on the facts.
Clause 100 is consistent with a common law principle which is not now attacked, and its effect is anyway mitigated by clause 101. Further, it is not an unreasonable provision, in that someone’s interest has to suffer when one of two joint periodic tenants serves a notice to quit. If the result is not as decided in Monk, either the tenant who served the notice is forced to remain a tenant against her will, or the landlord is landed with one tenant instead of two, which means less security – and, in a case such as the present, a family property occupied by a single person. Just as a joint tenant in Mr Sims’s position can claim that the outcome determined as correct in Monk is harsh, so could a joint tenant in Mrs Sims’s position or a landlord in Dacorum’s position contend that either of the alternative outcomes is harsh.

On Art 8, Mr S was entitled to raise the proportionality of eviction at the possession hearing, and indeed, the first instance Judge had

carefully considered that question, and, in relation to Mr Sims’s case on article 8, she came to the conclusion that Dacorum’s “careful decision-making process amply accorded with article 8.1 [and] that the decision that the Council made was one to which it could reasonably have come”. She then said that “[h]aving reviewed all the relevant factors myself, in my judgment it is lawful and proportionate to make an order for possession in this case”. Again, I consider that this was plainly correct.

The suggestion that the service of the notice to quit itself was a violation of article 8 rights did not go down well.

The fact that the service of the notice to quit put Mr Sims’s right to stay in his home at risk does not mean that it therefore operated as an infringement of his right to respect for his home. No judgment of the Strasbourg court begins to justify such a proposition. Mrs Sims had the right to serve the notice, and, as already observed, the service of such a notice and its consequences were specifically covered by the agreement which gave Mr Sims the right to occupy the house as his home in the first place (see clauses 100 and 101).

I accept that the effect of the service of the notice to quit was to put at risk Mr Sims’s enjoyment of his home. I also accept that different considerations may very well apply for article 8 purposes to Mr Sims, who is at risk of losing what has been his family home for many years, from those considerations that apply to temporarily housed homeless people who are at risk of losing their temporary accommodation as in R (CN) v Lewisham. However, I do not consider that that undermines the point that full respect for Mr Sims’s article 8 rights was accorded by the facts that (i) his tenancy was determined in accordance with its contractual terms to which he had agreed in clause 100 of the tenancy agreement, (ii) he was entitled to the benefit of clause 101 of his tenancy agreement, (iii) under the Protection from Eviction Act 1977, he could not be evicted without a court order, and (iv) the court would have to be satisfied that Dacorum was entitled to evict him as a matter of domestic law, and (v) the court could not make such an order without permitting him to raise a claim that it would be disproportionate to evict him, in accordance with the reasoning in Pinnock and Powell.

As above, the first instance judgment had indeed paid clear and careful attention to the proportionality of the possession claim and Dacorum’s consideration of circumstances under clause 101 of the tenancy agreement.

So, the appeal failed, foundering on the contractual term, and, for a Local Authority tenant at least, the availability of an art 8 proportionality consideration in possession proceedings.

Comment
I’m not sure that this close things down completely. The Council had not procured the departed tenant’s notice to quit on this occasion, unlike other cases, and it may be that such a procurement would raise additional art 8 issues (the ECtHR has suggested as much), and certainly possible public law defences.

It is also unfortunate that the test case on the rule in Monk involved a tenancy agreement which made notice by one of the joint tenants a contractual provision.

But complications and distinctions apart, it is now clear that the rule in Monk stands and does so without challenge.

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 +.
Posted in Housing law - All, Possession, secure-tenancy and tagged , .

14 Comments

  1. I may be being dim, but I’m not sure I understand your caveat:
    “The Council had not procured the departed tenant’s notice to quit on this occasion,…”
    Do you mean that the council had not sought a decision on the part of a leaving partner, that they had not received it in writing (and she had simply departed, or given it verbally) or that they had not presented a copy to the court ?

    The idea of pursuing a departed tenant to secure a notice that they wish to end the tenancy would be seem by some of those I work with as vindictive and possibly prejudicial to a reconciliation, even if it might tidy up loose ends.

    I accept of course that I may have missed the point.

    • No, that is exactly what happens sometimes. The landlord contacts the departed tenant to encourage them to serve notice.

      (And on your other bits, there has to be a notice in writing, received by the landlord, and it would have to have been evidenced in proceedings.)

    • Mrs Sims applied to Wycombe; they, not Dacorum, told her that they would not house her absent an NtQ addressed to Dacorum bringing the joint tenancy to an end. So the NtQ, whilst procured by a Council, was not procured by the Council in issue, Dacorum.

    • Picking up the second half of your comment; since it is not uncommon for the departing joint tenant to take the children with them, procuring an NtQ from that joint tenant does rather more than “tidy up loose ends”. Firstly, it brings back into circulation a unit of family-sized accommodation (always in short supply), that would otherwise be significantly underoccupied. Even if the authority do decide to rehouse the remaining JT, it is likely to be in smaller (in slightly less short supply) accommodation.

      Secondly it stops the departing JT ending up with two social housing tenancies, on one of which s/he is likely to accrue significant arrears because of the lack of HB.

      So when the NtQ is procured by the landlord housing authority, vindictiveness isn’t really the issue; it’s housing management, for good or ill.

      In this case, Wycombe’s reasoning presumably went along the lines of “if it’s not reasonable for Mrs Sims to continue to occupy the property, it’s not unreasonable for her to give it up”; although there may have been reciprocal arrangements between the two authorities under which it would be expected to procure the NtQ – they’re virtually neighbours.

    • And there are other circumstances where not so easily justified. Had a case where former partner left seven years ago. Client joint tenant living in house with children. The Council landlord went off to find the former partner joint tenant and got them to sign NTQ because they basically didn’t like my client. the fact that the same council would then owe my client a homeless duty was not a factor that troubled them. We settled the case (public law and art 8 defence), but I don’t believe it was an isolated case.

  2. “And there are other circumstances where not so easily justified.”

    You’ll find no argument from me on that proposition.

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  4. Questions:
    When a Joint Tenant serves a Notice to Quite on the landlord, and the Notice runs its course terminating the tenancy.
    1. Does the Landlord have to serve a Notice to Quit on the remaining occupant?
    2. or is the NTQ on the Landlord enough to act on for possession?

    • Assuming a valid tenant’s NtQ, the tenancy ends on its expiry; so there’s nothing for the Landlord to serve an NtQ on.

  5. Yes, but because a joint tenant depends upon the continuing will of his other joint tenant(s) he is inherently less secure than a sole tenant.
    In Simms it was held to be significant that the remaining tenant would obtain the enhanced status of a sole secure tenant of the property which was thought to be more of a case of interference with the Council’s enjoyment of its possessions than an interference by it with the tenant’s possessions.
    However, it is arguable there is no objective and reasonable justification for a legislative framework for secure tenancies which gives greater protection to a sole tenant than is given to a joint tenant against involuntary termination of the tenancy (see Law Comm No 297, para 4.9 – 4.12).
    Query, therefore, whether the statutory scheme for secure tenancies discriminates against joint tenants in a way which can’t be justified under art 14 ECHR. The common law rule may be compatible with the Convention, but the statutory scheme into which that rule has been incorporated may not be compatible.
    If the landlord (or its agent) to procured the Notice to Quit, depending on the procedure it adopted it may have done so wrongfully: McCann v United Kingdom.
    In deciding to commence proceedings and/or in pursuing a claim for possession, a public authority landlord should first consider the remaining tenant’s rights under Art 8 of the Convention: Wilson v Harrow LBC, and inform itself of the material facts to enable such consideration within the context of its allocations policy

    • “Yes, but because a joint tenant depends upon the continuing will of his other joint tenant(s) he is inherently less secure than a sole tenant.”

      True; but LAs don’t (usually) insist on granting joint tenancies; it is the prospective joint tenants that request this.

      It isn’t the statutory scheme for secure tenancies that creates the differences in the position; it’s the common law, the tenancy agreement that the tenant signs and the factual matrix.

    • “It isn’t the statutory scheme for secure tenancies that creates the differences in the position; it’s the common law …”
      The legislative scheme for secure tenancies under HA 1985 could exclude the common law rule, relied on but not originating in, Monk, but it doesn’t. It is preserved like Lord Walker’s patch of grass in the middle of a motorway junction (see his analogy in Doherty).
      The common rule itself, which derives from the law on joint interests generally, not just tenancies, is perfectly sensible. The question I pose, is whether the statutory edifice surrounding the rule in this context, into which it has become incorporated, is compatible with Convention rights.
      Incidentally, as I recall, some allocation policies do insist on joint tenancies in certain circumstances. Or perhaps I should say “did”, because it is a while since I looked.
      The ability to bring such a tenancy to an end can be a potent tool in cases of relationship breakdown e.g. where there is a dispute over children and one former partner can effectively render the other homeless and thereby undermine the practicality of contact.

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