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Should I stay or should I go? The position of a joint tenant whose partner has served a notice to quit

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28/01/2015

Housing Litigation specialist Karl Anders looks at the latest in a line of cases where the highest national and European courts have considered the impact of human rights legislation on domestic possession proceedings. In Sims v Dacorum [1] the Supreme Court considered a joint tenant who wished to remain in a property following his joint tenant’s notice to quit.

Human rights legislation affords every person the right to respect for his or her home and the peaceful enjoyment of possessions without interference, except in accordance with the law or so far as is necessary or in the public interest in a democratic society [2]. Tenants hoping to avoid eviction by public authorities have sought to rely on these important principles in myriad ways over recent years, but the Sims case is interesting as it clarifies the position of joint tenants.

Prior to the enactment of the Human Rights Act 1998 (“the HRA“), the House of Lords held in LB Hammersmith and Fulham v Monk [3] that, unless a tenancy agreement provides otherwise, one joint tenant can unilaterally serve a notice to quit which will end the tenancy. In a number of cases which reached the European Court of Human Rights, and in the Supreme Court’s decision in the case of Manchester City Council v Pinnock [4], it was held that a person at risk of being dispossessed should have the right under Article 8, Schedule 1 HRA to challenge the proportionality of the eviction.

Mr Sims relied on Pinnock to resist eviction when, after alleged domestic violence, his wife (and joint tenant at their home) served notice to quit and the landlord, Dacorum BC, sought possession based on termination of the tenancy. Mr Sims defended the possession proceedings on the basis that the rule in Monk was incompatible with the relevant human rights legislation. Mr Sims’ defence failed at first instance. However his appeal was leapfrogged to the Court of Appeal, and following its dismissal, the case was considered by the Supreme Court.

In his judgment, which was unanimously agreed, Lord Neuberger concluded that the rule in Monk was not incompatible with Article 1 of Protocol 1 because the terms of the tenancy allowed one joint tenant to give notice; the terms of the tenancy and indeed the rule itself were not unreasonable; and Mr Sims had therefore lost his tenancy in accordance with the law. Lord Neuberger went on to explain that if Monk were reversed, either a tenant serving notice would be forced to remain against his or her will, or a landlord would have to accept one tenant where previously there had been two, and would therefore suffer less security.

Furthermore, Mr Sims had been entitled to raise a proportionality defence and he had done so (albeit it had failed because the tenancy was terminated in accordance with its terms; there was no criticism of the Deputy District Judge’s decision-making process; Mr Sims would equally have been entitled to serve notice had he wished to terminate; and the Protection from Eviction Act 1977 afforded him safeguard), and so neither was there any breach of Article 8 EHCR.

WM Comment
The Sims case is helpful because the guidance it gives is authoritative and very clear. It is anticipated that cases up and down the country with similar facts which have been stayed pending this decision will now be settled, and it is hoped that similar joint tenancy possession disputes will be resolved without the need for litigation in future. The availability of the Pinnock proportionality defence remains paramount, as the crucial protection for a person’s right to enjoy their home.

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[1] [2014] UKSC 63
[2] European Convention on Human Rights Article 8 (1) and (2) and Article 1 of Protocol No. 1
[3] [1992] 1 AC 478; (1992) 24 HLR 360
[4] [2010] UKSC 45 https://www.walkermorris.co.uk/proportionality-paramount

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