What is the legal position when one of two joint tenants gives notice to a landlord quitting the joint tenancy? Does the other joint tenant, still living in the property, have a right to remain?
The legal position was settled by the House of Lords in Hammersmith and Fulham LBC v. Monk [1992] AC 478. If a periodic tenancy is vested in joint tenants, a valid notice to quit given by one joint tenant terminates the tenancy. This is because a periodic tenancy is, in essence, a series of tenancies. Consequently, any one of two or more joint tenants can refuse to renew at the end of each and every period. This can cause severe hardship where a relationship between joint tenants breaks down. Any one tenant can terminate the tenancy, leaving the landlord free to resume possession of the premises. To make matters worse, once given, the notice cannot be withdrawn.
What is the legal position when one of two joint tenants gives notice to a landlord quitting the joint tenancy? Does the other joint tenant, still living in the property, have a right to remain?
The legal position was settled by the House of Lords in Hammersmith and Fulham LBC v. Monk [1992] AC 478. If a periodic tenancy is vested in joint tenants, a valid notice to quit given by one joint tenant terminates the tenancy. This is because a periodic tenancy is, in essence, a series of tenancies. Consequently, any one of two or more joint tenants can refuse to renew at the end of each and every period. This can cause severe hardship where a relationship between joint tenants breaks down. Any one tenant can terminate the tenancy, leaving the landlord free to resume possession of the premises. To make matters worse, once given, the notice cannot be withdrawn.
In Sims v Dacorum Borough Council [2013] EWCA Civ 12, the tenant was appealing against a possession order obtained by the council. He claimed that he was entitled to respect for his home under Article 8 of the European Convention on Human Rights. The property was one of his possessions and he was entitled to protection from interference with his enjoyment of it under Article 1 of the First Protocol to the Convention. It was common ground that that the case fell within the scope of the Human Rights Act 1998 (which incorporates the convention into English law), because the claim for possession was made by a public authority.
The tenant based his challenge solely on the compatibility of the rule in Monk with Article 8 and Article 1 of the First Protocol. Consequently, the case was not about the engagement of those articles with the possession proceedings themselves. The tenant claimed that it was impossible to reconcile Monk with his Convention rights and asked the court to rectify the problem by treating the notice to quit as a release by the outgoing tenant of her interest in the property, leaving him as the sole tenant.
The Court of Appeal dismissed the tenant’s appeal. Speaking bluntly, it was the tenant who was interfering with the council’s enjoyment of its possessions because he was seeking to enhance the rights granted by the council, without its agreement.
Article 8 was not engaged; Monk established a substantive rule of property and contract law and there was nothing in the legal rule itself, or in the exercise of it, that disrespected the tenant’s home. Article 1 was not engaged either. The rule in Monk is inherent in a joint tenancy. The outgoing tenant had exercised her right to serve a notice to quit and neither she nor the council had interfered with the tenant’s enjoyment of his possessions because he had an interest that was, by its very nature, terminable unilaterally by either joint tenant.
The tenant’s object was to obtain permission to take his case to the Supreme Court, but the Court of Appeal decided that this would be a waste of public funds. Will the tenant now petition the Supreme Court for leave to appeal? We shall have to wait and see.
Allyson Colby is a property law consultant
