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.