‘Monk rule’ on joint tenancy faces Supreme Court fate

The Supreme Court will decide next week whether the rule that service of a valid notice to quit by only one joint tenant is enough to terminate a joint secure tenancy is a breach of human rights. Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Toulson, and Lord Hodge are to decide whether the rule – set down by the House of Lords in Hammersmith and Fulham Metropolitan Borough Council v Monk – remains in effect. Michael Sims, a husband who wishes to stay in the family home in Chipperfield, Kings Langley, Hertfordshire, after his wife left the property with her children, claims that the rule is incompatible with Article 8 and Article 1 of the First Protocol to the European Convention on Human Rights. However, the High Court and Court of Appeal– both bound by the decision in Monk – rejected his claim. The Supreme Court, though, has the power to decide that the Monk rule – the effect of which is that, absent a term of the tenancy to the contrary, a notice to quit given by one of a number of joint periodic tenants is effective to terminate the tenancy – is incompatible with the Convention. It will also decide whether, if the rule is not compatible, Monk should be reversed so that a joint tenant’s notice to quit is not effective to determine the tenancy. In the Court of Appeal decision under challenge, Mummery LJ said: “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 [counsel for the appellant] 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.” He found that neither Article 8 nor Article 1 of the First Protocol were engaged in the circumstances of this case, and stated: “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.” Following Mrs Sims’ service of a notice to quit in June 2010, Mr Sims has been left without security of tenure and with no interest in the three-bedroom property, giving Dacorum Borough Council an unqualified right to possession. Sims v Dacorum Borough Council, Supreme Court (Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Toulson, and Lord Hodge)